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IN THE 

COURT OF SPECIAL APPEALS OF MARYLAND 



SEPTEMBER TERM, 2000 

NO. 923 lttWB 



ADNAN SYED, 
Appellant 
v. 

STATE OF MARYLAND, 
Appellee 



FEB 2 7 ZWZ 

BY COURT OF SPtClAl APPEALS 



APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE CITY 
(HONORABLE WANDA KEYES HEARD, PRESIDING) 



BRIEF OF APPELLANT 



WARREN A. BROWN 
WARREN A. BROWN, P.A. 
1200 Court Square Building 
200 East Lexington Street 
Baltimore, Maryland 21202 
(410) 576-3900 

Lisa J. Sansone, Esquire 
Law Office of Lisa J. Sansone 
1002 Frederick Road 
Baltimore, Maryland 21228 
(410) 719-0221 



Attorneys for Appellant 



TABLE OF CONTENTS 



Page(s) 



TABLE OF AUTHORITIES 



11 



STATEMENT OF THE CASE 



QUESTIONS PRESENTED 



2 



STATEMENT OF FACTS 



3 



ARGUMENT 



17 



A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT, 
VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS 
RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL EVIDENCE OF 
AN ORAL SIDE AGREEMENT WITH ITS KEY WITNESS, AND WHEN IT 
INTRODUCED FALSE AND MISLEADING EVIDENCE, AND THE TRIAL 
COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING APPELLANT 
FROM PRESENTING THIS EVIDENCE TO THE JURY 17 

1 . The State suppressed favorable material evidence and introduced and 
elicited false and misleading testimony relating to the plea agreement with 
its key witness in violation of Brady 18 

2. The State's actions constituted prosecutorial misconduct 41 

3. The trial court committed reversible error in prohibiting Appellant from 
calling Benaroya and recalling Wilds as a witness 43 

4. The trial court committed reversible error in restricting the cross- 
examination of Wilds 44 

5. The trial court committed reversible error in denying Appellant's motion 
to strike the testimony of Wilds 47 

6. The trial court committed reversible^ error in precluding Appellant from 
calling Ms. Julian as a witness 48 



7. The trial court committed reversible error in denying Appellant's motion 
to disclose documents and information from the State 49 

8. The trial court committed reversible error in denying Appellant's motion 
to question Mr. Urick out of the presence of the jury 50 

B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE FORM 
OF A LETTER FROM THE VICTIM TO APPELLANT, WHICH IS HIGHLY 
PREJUDICIAL 51 

C. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF 
THE VICTIM'S 62-PAGE DIARY, WHICH CONSTITUTED IRRELEVANT 
HIGHLY PREJUDICIAL HEARSAY 55 

CONCLUSION 63 

CERTIFICATE OF SERVICE 64 

PERTINENT AUTHORITIES 65 

APPENDIX 75 

TABLE OF AUTHORITIES 

Cases Page(s) 

Arizona v. Youngblood . 488 U.S. 51, 109 S.Ct. 333 (1988) 41 

Banks v. State . 92 Md. App. 422, 438, 608 A.2d 1249 (1992) .... 51, 54, 55, 58, 59, 

61 

Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1194 (1963) 18 

Buckeve Powder Co. v. DuPont Powder Co. . 248 U.S. 55, 

39 S.Ct. 38(1918) 60 

Case v. State . 1 18 Md. App. 279. 702 A.2d 777 (1997) 61 

Clark v. State. 364 Md. 61 1. 774 A.2d 1 136 (2001) 18,41 



ii 



Cluster v.. Cole. 2 1 Md. App. 242, 3 1 9 A.2d 320 (1 974) 63 

Commonwealth v. DelValle. 351 Mass. 489, 

221 N.E.2d 922 (1966) 60 

Commonwealth v. Gilday . 3 82 Mass. 1 66, 4 1 5 N.E.2d 797 ( 1 980) . 37 

Commonwealth v. Hill . 432 Mass. 704 : 739 NR. 2d 670 (2000) ... 37 

Convers v. State . Md. , A.2d 

(No. 26. Sept. Term 2001) (filed February 5, 2002) 18,30,31,33-37, 

39, 40, 47, 48, 49 

Davis v. Alaska . 415 U.S. 308, 94 S.Ct. 1 105 (1974) 45 

Delaware v. Van ArsdalL 475 U.S. 673, 106 S.Ct. 1431 (1986) ... 45 

E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md. 396, 

718 A.2d 1129(1998) 47,49,50 

Fontaine v. State . 134 Md. App. 275, 759 A.2d 1 136, 

cert, denied . 362 Md. 188 (2000) 18 

Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997) 44, 46-49, 51 

Martin v. State . Ala. Crim App. , 

2001 Ala. Crim. App. Lexis 298, 21 (2001) 32 

McNeil v. State . 1 12 Md. App. 434 : 685 A.2d 839 (1 996) 41 

Moosavi v. State . 355 Md. 651. 736 A.2d 285 (1999) 63 

Move v. State . 139 Md. App. 538, 776 A.2d 120, 

cert, granted . 366 Md. 274 (2001) 63 

Napue v. People of 111. . 360 U.S. 264, 79 S.Ct. 1173 (1959) 32, 36, 37 

Richardson v. State 324 Md. 611. 598 A.2d 1 80 (1 991 ) 62 

Simmons v. State . 333 Md. 547, 636 A.2d 463, 

iii 



cert, denied . 513 U.S. 815, 115 S.Ct 70 (1994) 45 

State v. Cox. 298 Md. 173, 468 A.2d 319 (1983) 45 

Taliaferro v. State . 295 Md. 376, 456 A.2d 29, 

cert, denied . 461 U.S. 948, 103 S.Ct. 2114 (1983) 47, 48 

Trupp v. Wolff . 24 Md. App. 588, 335 A.2d 178, 

cert, denied . 275 Md. 757 (1975) 50 

United States v. Bag ley. 473 U.S. 667, 105 S.Ct 3375 (1985) .... 32 

United States v. Brown . 490 F.2d 758, 763 n. 10 (D.C.Cir.1973) . . 60 

United States v. Day , 591 F.2d 861 (D.C.Cir.1978) 60 

United States v. Lovasco . 431 U.S. 783, 97 S.Ct. 2044 (1977) ... 41 

United States v. Marion , 404 U.S. 307 r 92 S.Ct 455 (1 971 ) 41 

University of Maryland Medical Systems Corp. v. Malory . 

Md. App. , A2d (No. 1883, Sept. Term, 2000) 

(Filed Oct 31, 2001) (2001 WL 1335643) 47,48 

Wilson v. State . 363 Md. 333, 768 A2d 675 (2001) 31,33-38,40 

Statutes. Rules. Constitutional Provisions 

Maryland Rule 4-242 24,42 

Maryland Rule 5-401 61 

Maryland Rule 5-801 53 

Maryland Rule 5-802 53 

Maryland Rule 5-803 54, 55, 61, 62 

iv 



Maryland Rule 8-131 
Maryland Rule 8-504 
U.S. Const. Amend. VI 
U.S. Const. Amend. XTV 
Article 21, Md. Decl. Rights 
Article 24, Md. Decl. Rights 



IN THE 

COURT OF SPECIAL APPEALS OF MARYLAND 

SEPTEMBER TERM, 2000 

NO. 923 

ADNAN SYED, 
Appellant 
v. 

STATE OF MARYLAND, 
Appellee 



APPEAL FROM THE CmCUIT COURT FOR BALTIMORE CITY 
(HONORABLE WANDA KEYES HEARD, PRESIDING) 

BRIEF OF APPELLANT 

I. STATEMENT OF THE CASE 



On February 25, 2000, Appellant was convicted by a jury in Baltimore City, the 
Honorable Wanda Keyes Heard presiding, of the following offenses: first degree murder, 
robbery, kidnapping and false imprisonment. 1 On June 6, 2000, Judge Heard sentenced 
Appellant as follows: life imprisonment for first degree murder; 30 years imprisonment for 
kidnapping, consecutive to the life sentence; 10 years imprisonment for robbery concurrent 
to 30 years for kidnapping and consecutive to the life imprisonment sentence; and the trial 
court merged the false imprisonment with the kidnapping count. 



*A first trial ended in a mistrial on December 15, 1999 after the jury overheard a 
different trial judge at a bench conference refer to defense counsel as a "liar." (12/15/99- 
253) 



II. QUESTIONS PRESENTED 



A. Whether the State Committed Prosecutorial Misconduct, Violated Brady 
and Violated Appellant's Due Process Rights When it Suppressed Favorable 
Material Evidence of an Oral Side Agreement with its Key Witness, and When 
it Introduced False and Misleading Evidence, and the Trial Court Committed 
Reversible Error In Prohibiting Appellant from Presenting this Evidence to the 
Jury? 

1. Whether the State suppressed favorable material evidence and 
introduced and elicited false and misleading testimony relating to the plea 
agreement with its key witness in violation of Brady ? 

2. Whether the State's actions constituted prosecutorial misconduct? 

3. Whether the trial court committed reversible error in prohibiting 
Appellant from calling Benaroya and recalling Wilds as a witness? 

4. Whether the trial court committed reversible error in restricting the 
cross-examination of Wilds? 

5. Whether the trial court committed reversible error in denying 
Appellant's motion to strike the testimony of Wilds? 

6. Whether the trial court committed reversible error in precluding 
Appellant from calling Ms. Julian as a witness? 

7. Whether the trial court committed reversible error in denying 
Appellant's motion to disclose documents and information from the State? 

8. Whether the trial court committed reversible error in denying 
Appellant's motion to question Mr. Urick out of the presence of the jury? 

B . Whether the Trial Court Erred in Admitting Hearsay in the Form of a Letter 
from the Victim to Appellant, Which Is Highly Prejudicial? 

C. Whether the Trial Court Erred in Permitting the Introduction of the 
Victim's 62-page Diary, Which Constituted Irrelevant Highly Prejudicial 
Hearsay? 



2 



III. STATEMENT OF FACTS 

Appellant was convicted of killing his close friend and former girlfriend Hae Min Lee 
on or about January 13, 1999. Appellant and Hae were seniors at Woodlawn High School 
in Baltimore County. They were both in the gifted and talented program there and had both 
been accepted to colleges. (1/28/00-238) 2 At trial, there was considerable testimony relating 



References to the Transcript are as follows: 



Date 

7/9/99 

7/23/99 

12/15/99 

1/21/00 

1/24/00 

1/27/00 

1/28/00 

1/31/00 

2/1/00 

2/2/00 

2/3/00 

2/4/00 

2/8/00 

2/9/00 

2/10/00 

2/11/00 

2/14/00 

2/15/00 

2/16/00 

2/17/00 

2/21/00 

2/22/00 

2/23/00 

2/24/00 

2/25/00 



Proceedings 

Motion To Disqualify Defense Counsel Prior to First Trial 

Ruling on Motion to Disqualify Defense Counsel 

First Trial - Mistrial 

Motions, Voir Dire Second Trial 

Trial on the Merits, Second Trial 



and Verdict 



3 



to the religious differences between Hae and Appellant, and the difficulties posed by these 
differences in dating each other. Appellant is a Muslim, and dating is forbidden. Hae was 
a Christian, and ultimately, their religious differences led the pair to end their relationship. 
(1/28/00-141) Friends testified that both Hae and Appellant were sad about the breakup, but 
not bitter or angry. (1/28/00-224) Yaser Ali, Appellant's best friend, testified that Appellant 
told him that the relationship was over because it was too hard to hide it from his family, and 
that the breakup was a mutual decision. (2/3/00-88) Ali also testified that Appellant wanted 
to remain friends with Hae after the break up, and that Appellant had interests in other girls 
as of December, 1998. (2/3/00-117-123) At the beginning of January, 1999, Hae began 
dating Don Cliendienst, whom she met while working part time at Lens Crafters. (1/28/00- 
64-69) 

Hae was last seen alive on January 13, 1999 at school around 2:30 p.m. Her family 
filed a missing persons report when she failed to pick up her cousin at school as she regularly 
did. (1/1 3/00-5) She was supposed to pick up her 6 year-old cousin at 3 :00 or 3 : 1 5 p.m. that 
day. (1/28/00-25) Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High 
School and Hae's friend, testified that she saw Hae at 2:15-2:30 p.m. on January 13. Hae 
told her she was in a hurry to pick up her cousin from school, but that it was not far and she 
would be back soon. Hendricks told her to hurry because Hae had to be back by 5:00 p.m. 
to ride the wrestling team bus to an away match for which Hae was to keep score. (2/4/00- 



6/6/00 



Sentencing and Motion for New Trial 

4 



19-20) When Hae did not return by 5:00 p.m., Hendricks took Hae's place as scorer. 
(2/4/00-21) She testified that Appellant was on the track team, and practice begins by 3:30 
p.m. (2/4/00-17) 

Appellant was questioned by police on January 25, 1999 about Hae's disappearance. 
He told the police that he and Hae used to date. He said that on January 13, 1999, a 
Wednesday, he had class with Hae from 12:50 to 2: 1 5 p.m. Appellant said he went to track 
practice that afternoon. He did not see Hae the next two days at school, Thursday and 
Friday, because the school was closed for inclement weather. (1/31/00-25) 

Hae's body was found in Leakin Park on February 9, 1 999 by a man named Alonso 
Sellers. (1/3 1/00-27) He testified that he saw the body in Leakin Park when he went to find 
a private spot to urinate. Unbeknownst to the jury, Alonso Sellers had been previously 
convicted of indecent exposure. Sellers testified that he left his house and was driving to 
work when he had to pull his car over to urinate in the park. The park was only a few blocks 
away from his house. (2/23/00-9) The body was 127 feet from the road and was difficult to 
see. (1/31/00-101) The body was not even visible to Dr. Rodriguez, a member of the 
recovery team who went to exhume the body. (1/28/00-1 82) Dr. Rodriguez testified that the 
body was well hidden, and the average person would not be able to see it. (1/28/00-1 82) 

The Medical Examiner testified that Hae had been strangled, but was unable to testify 
as to when she had been killed. (2/2/00-66) Hairs found on Hae's body were compared to 
Appellant and did not match Appellant's hair. (2/1/00-1 1 6) Those hairs were not compared 



5 



to anyone else. (2/1/00-1 16) Fibers found on Hae's body were compared to fibers from 
Appellant's clothing, and no match was made. (2/1/00-123) Likewise, Appellant's clothing 
was examined and compared to fibers from Hae's clothing, and no match was found. 
(2/1/00-123) Appellant's coat was examined and nothing of evidentiary value was found. 
(2/1/00-165) Soil from Appellant's boots which were seized from his house were compared 
to soil samples from the burial site and no match was found. (2/1/00-165) Appellant was 
ruled out from having been the source of a stain on a shirt in Hae's car. (2/2/00-28) 

Don Cliendinst testified that he dated Hae after she and Appellant broke up, from 
January 1, 1999 until her disappearance on January 13, 1999. (2/1/00-71) On one occasion 
between January 1 and 13, he saw Appellant at the Lens Crafter store where both Don and 
Hae worked. Appellant came out to the store to inspect Hae's car because it was not running 
properly. Both Don and Appellant concluded that the car was not safe for Hae to drive home. 
Don said that Appellant, who knew Hae and Don were dating, was not hostile to him. 
Appellant drove Hae home that night. (2/1/00-76-86) Appellant's fingerprints were found 
in Hae's car after she disappeared. Appellant admitted he had been in Hae's car before on 
numerous occasions. (2/1/00-39) Inez Butler Hendricks testified that after Hae's body was 
found, Appellant told her that his last memories of Hae were not good, that they had a fight 
about Hae going to the prom with Appellant. (2/4/00-26) 

Jay Wilds was the chief prosecution witness, who testified as follows. He was one 
grade older than Hae and Appellant. Wilds dated Stephanie McPherson, who was 



6 



Appellant's close friend. (2/4/00-1 1 5) Wilds said Appellant was an acquaintance of his, and 
he gave Wilds a ride in his car one time. Even though Appellant was the prom king and 
Stephanie was the prom' queen, Wilds said he was not jealous of Appellant's relationship 
with Stephanie. (2/14/00-66) On January 12, 1999, which was Wilds' birthday, Appellant 
called him at 10:00 p.m. He asked Wilds what he was doing the next day. Wilds said 
"nothing," and that was the end of the conversation. (2/4/00-1 1 9) The next morning, January 
13, 1999, which happened to be Stephanie's birthday, Appellant called Wilds at 10:45 a.m. 
Wilds told Appellant he needed to go to the mall to get Stephanie a gift, and Appellant said 
he would take him. He and Appellant went to Security Square Mall, shopped for about one 
and a half hours, and Appellant said he needed to go back to school. (2/4/00-125) On the way 
to school, Appellant talked about his relationship with Hae, and said it was not going well. 
Wilds testified that Appellant seemed hurt rather than angry. (2/4/00-125) Wilds then 
testified that Appellant said Hae made him mad and said, "I am going to kill that bitch." 
(2/4/00-126) Appellant told Wilds he could drop Appellant off at school and take 
Appellant's car as long as he picked Appellant up later. Appellant gave Wilds Appellant's 
cell phone so that he could call Wilds when he was ready to be picked up. 

Cell phone records for Appellant's cell phone showed that at 12:07 p.m., Wilds called 
the home of his friend Jen Pusiteri. Wilds went to her home and played video games with 
Jen's brother Mark for about 30 minutes. Jen was not home. Wilds then left with Mark to 
go back to the mall. (2/4/00-127-130) Wilds testified that he and Mark returned to Mark's 



7 



house and Jen was there. Later, Wilds went to his friend Jeff s house, but he was not at - 
home. Appellant allegedly called Wilds to come pick him up at Best Buy. (2/4/1 30) Wilds 
testified that he saw Appellant standing near a payphone outside of Best Buy wearing red 
gloves. Appellant allegedly directed Wilds to park near a gray Sentra. Wilds testified that 
Appellant asked him if he was ready for this, and then opened the trunk of the Sentra to 
reveal Hae's body. (2/4/00-13 1) Wilds said that Appellant got in Hae's car and told Wilds 
to follow in Appellant's car. They allegedly drove to a Park and Ride on Interstate 70. Wilds 
said he got into the passenger side of Hae's car. Wilds called Jen at 3:21 p.m. to see if his 
friend Patrick was home so he could buy marijuana, but he was not. Wilds said Appellant 
called a young lady in Silver Spring and made small talk, and that Appellant received a call 
from someone speaking Arabic, possibly his mother. (2/4/00-134-40, 143) 

Wilds said Appellant told him, "it's done." Wilds said Appellant said it kind of hurt 
him but not really, because when someone treats him like that they deserve to die. Appellant 
allegedly said, "how can you treat someone like that that you are supposed to love." He 
allegedly then said, "all knowing is Allah." (2/4/00-142) Then Appellant allegedly said he 
needed to get back to track practice because he needed to be seen. As he got out of the car 
at school, Appellant allegedly said "motherfuckers think they are hard, I killed someone with 
my bare hands." (2/4/00-142) Wilds testified that Appellant told him that he thought Hae 
was trying to say something Like apologize to him and that she kicked off the turn signal in 
the car. Appellant allegedly said he was afraid Hae would scratch him in the face. (2/4/00- 



8 



142-43) 

After dropping Appellant off at school, Wilds testified that he went to Kristi Vincent's 
house, smoked some marijuana, and debated about what to do. Kristi and her boyfriend were 
there. (2/4/00-144) About 30 minutes later, Appellant called and Wilds went to school to get 
him. They went back to Vincent's and Appellant allegedly fell asleep on the floor after 
smoking some marijuana. Appellant got a call from Hae's parents asking if he had seen Hae 
and he said no, and suggested they ask her new boyfriend. (2/4/00-145) Appellant then 
received a call from the police asking where Hae was and he said he did not know. Wilds 
said he left Vincent's with Appellant. 

According to Wilds' testimony, Appellant drove Wilds home and said, "you have got 
to help me get rid of Hae." (2/4/00-147) Wilds feared that Appellant would use his 
knowledge of Wilds' drug dealing against him and agreed to help. (2/4/00-147) Wilds got 
two shovels form his house and put them in Appellant's car. They drove to pick up Hae's 
car, and Appellant got in Hae's car. Wilds followed Appellant around for 45 minutes, and 
they ended up in Leakin Park (2/4/00-148). 

Wilds said he was supposed to meet Jen at 7:00 p.m., so he paged her at 7:00 p.m. 
from Leakin Park. While Wilds and Appellant were digging, Jen called the cell phone, 
returning Wilds' page. Appellant allegedly answered and told Jen they were busy and hung 
up-. Wilds said after they dug for a while, Appellant asked Wilds to help him get Hae out of 
the car, but Wilds refused. (2/4/00-152) Allegedly, while Appellant took Hae's body to the 



9 



shallow grave and put dirt on her to cover her, he received another call. He spoke part in 
Arabic and part in English. (2/4/00-153) Wilds testified that after burying Hae, they left and 
parked Hae's car near some apartments. According to Wilds, Appellant said, "it kind of 
makes me feel better and it kind of doesn't." (2/4/00-1 56) He said they went to Value City 
and threw away some of Hae's belongings and some other evidence in a dumpster. Wilds 
paged Jen again. Appellant allegedly drove Wilds home and Wilds changed his clothes and 
put them in a bag. Jen came to pick up Wilds at his home and took him to Super Fresh where 
he threw the shovels and his bag of clothes away in a dumpster. (2/4/00- 158) Wilds told Jen 
that he wanted her "to be the one person to know that I didn't kill Hae." (2/4/00-158) 

Wilds was questioned three times by the police, the first time was on February 28, 
1999. (2/10/00-14) On that date, the police questioned him for two hours, and then turned 
a tape recorder on and questioned him for two more hours. He said the police confronted 
him with things Jennifer Pusiteri had told them earlier when she was questioned by police. 
Wilds said that he told Jennifer what happened on January 13. Wilds said he asked the 
police to turn off the recorder, which they did, and he asked for an attorney. The police 
asked him why he needed one, and turned on the recorder to continue the questioning. 
(2/10/00-49) 

Wilds acknowledged that he lied to the police. (2/4/00-221) The first time Wilds 
spoke to the police, he said he was not involved in killing or burying Hae. (2/4/00-229) He 
said he lied to the police about the location of Hae's car. (2/10-66) He told the police that 



10 



he saw Hae's body in a truck, not in the trunk of Hae's.Sentra. (2/10/00-76) He also told 
police he walked to the mall on January 13. He said his only contact with Appellant on 
January 13 was at 2:00 p.m. when Appellant called him and asked for directions to a shop 
in East Baltimore. Wilds told the police different stories about where Jennifer picked him 
up on January 13. 

On March 15, 1999, Wilds gave a second statement to the police. (2/10/00-83) 
During this questioning, Wilds told police that Appellant said on January 12 that "he was 
going to kill that bitch, " and then later said it was four days before January 12. (2/10/00- 
187) 

On April 13, 1999, Wilds gave a third statement to police. He told police that 
Appellant killed Hae in Patapsco State Park, and that Appellant paid him to help. (2/14/00- 
115) Wilds eventually took the police to where the body was buried and to where Hae's car 
was located. 

Detective MacGillivary testified as follows. On February 9, 1999, he responded as 
the primary detective to Leakin Park, where Hae's body was recovered. (2/17/00-153) Based 
upon information contained in Hae's missing person report, he obtained Appellant's cell 
phone records. On February 26, 1999, he went to Jennifer Pusiteri's house and asked her to 
come to the police station to talk. (2/17/00-156) Jennifer came to the station that night and 
gave a statement. She said that she heard that Hae had been strangled, although that 
information had not yet been publicly released. (2/1 7/00-3 14) 



11 



Contrary. to Wilds' testimony, MacGillivary said at no time did Wilds request a 
lawyer, because if he had, all questioning would have ceased. (2/18/00-128-129) 
MacGillivary denied that Wilds first took him to the wrong location before showing police 
where the car was. He also said that Wilds told him that Appellant showed him Hae's body 
in the trunk on Franklintown Road, contrary to Wilds' testimony that it happened at the Best 
Buy. (2/1 8/00- 151) MacGillivary interviewed Wilds a second time on March 15, 1 999, with 
Appellant's cell phone records, and noticed that Wilds' statement did not match up to the 
records. Once confronted with the cell phone records, Wilds "remembered things a lot 
better." (2/17/00-158) Wilds gave yet a third statement on April 1 3, 1 999, and admitted that 
he lied on the two previous occasions to cover up the fact that he bought and sold marijuana. 
(2/18/00-166) On cross-examination, MacGillivary testified that Alonso Sellers was 
considered to be a suspect. (2/1 7/00-225) 

On February 26, 1999, after speaking with Jennifer, MacGillivary went to Appellant's 
home and Appellant gave a statement. Appellant said he had a relationship with Hae, and 
had been in her car before, but not on January 1 3, 1 999. (2/1 7/00-264) Appellant said he did 
not remember what happened on January 13, 1999. (2/17/00-271) A police report of this 
statement was not written until September 14, 1999. On February 27, 1999, Appellant was 
questioned at school and at the police station and gave statements denying his involvement. 

Jennifer Pusiteri testified as follows. On January 13,1 999, Wilds came over to her 
house in a tan car to hang out with her and her brother. Wilds was acting different, not 



12 



relaxed, and had a cell phone which was unusual. (2/1 5/00-1 85) Wilds said he was waiting 
for a call. At 3:00-3:30 p.m., Wilds left her house. After 4:30 p.m., Jennifer called her friend 
Kristi's house and Wilds was there. Wilds and Jennifer had plans to go to Kristi's house 
together that evening. She called the cell phone later and someone answered the phone and 
said, "Jay will call you back when he is ready for you to come and get him, he is busy." 
(2/1 5/00-1 89) The voice on the cell phone was an older male, deep, not like a kid, and it was 
not Wilds. (2/16/00-169) Between 8:00-8:15 p.m., Jennifer got a message from Wilds to 
pick him up at Westview Mall in 15 minutes, so she left and picked him up in front of Value 
City. (2/15/00-190-192) Appellant was with him, driving, and said hello to Jennifer. Wilds 
got in her car and said, "I have to tell you something, but you can't tell anyone." He said 
Appellant strangled Hae in the Best Buy parking lot. Wilds saw her body in the trunk. He 
said Appellant used Wilds' shovels to bury her and Wilds wanted to make sure there were 
no fingerprints on them. (2/1 5/00- 1 94- 1 96) 

Jennifer testified Wilds told her he wanted to go check on Stephanie to make sure she 
was okay. They went to Stephanie's house between 8:30-9:00 p.m. The next day Jennifer 
took Wilds to F&M drugstore to get rid of clothing and boots in a dumpster. (2/1 5/00- 1 96- 
198) 

Kristi Vinson testified as follows. On January 13, 1999, at 5:00-5:15 p.m., she arrived 
home, and her boyfriend Jeff Johnson was there. Wilds and Appellant arrived later, and were 
acting "shady." (2/16/00-217) She had never met Appellant before. They all watched 



13 



television at about 6:00 p.m. Appellant was lying on some pillows on her floor when he 
asked, "how do you get rid of a high?" (2/16/00-210) Appellant got a call on his cell phone 
and said, "they're going to come and talk to me, what should I say, what should I do?" 
(2/16/00-213) Then Appellant and Wilds left. (2/16/00-214) Wilds returned hours later with 
Jennifer, but Appellant was not with them. 

Debbie Warren testified as follows. She was a close friend of Hae's. Appellant and 
Hae were boyfriend and girlfriend, but broke up and got back together two or three times. 
She said that the last time they broke up because Hae felt that Appellant was being 
overprotective of her. Hae began to date "Donnie" and Appellant knew about it. Appellant 
told Debbie he thought Hae and Donnie were having sex while Appellant and Hae were still 
dating, but Debbie told Appellant that it was not true. (2/16/00-298-302) The last time 
Debbie saw Hae on January 1 3 was in gym class, and Hae was happy and rushing to go 
somewhere at 3:00 p.m. Debbie could not remember where Hae was going, but she told 
police on January 28, 1999 that Hae said she was going to the mall with Don. (2/16/00-306, 
2/17/00-70) 

On cross-examination, Debbie stated that she was friends with Stephanie, and 
Stephanie confided to Debbie that she was interested in Appellant. At the prom in 1998, 
when Appellant was voted prom king and Stephanie was prom queen, they danced. 
Appellant, however, left Stephanie during the dance and went to get Hae to finish the dance 
with him. (2/17/00-30-34) Hae broke up with Appellant two or three times because she did 



14 



not want Appellant to have to choose between her and his religion, and Hae's parents did not 
want her to date Appellant either. (2/17/00-48) Appellant was not mad when Hae broke up 
with him on these occasions. In fact, even after the final breakup in December 1998, Hae 
and Appellant exchanged holiday gifts. (2/17/00-57) When Appellant found out Hae was 
dating Don, he said he accepted it and would try to move on. (2/17/00-59) 

Abraham Waranowitz testified as an expert in AT&T network design as to Erickson 
cell phone equipment. Waranowitz testified that a cell phone activates a cell site which has 
three sides. Each side points to a unique direction. Using exhibits which showed the number 
of the cell tower activated by the cell phone when a call was made or received, Waranowitz 
testified as to the location of the cell tower, and testified as to which of the three sides was 
activated. Waranowitz testified that his tests revealed that the cell sites that were activated 
were consistent with cell phone calls being made and received from Kristi Vincent's house 
and the burial site in Leakin Park. (2/8/00-98-1 15) 

On cross-examination, Waranowitz admitted that he could have used Appellant's 
actual phone for the tests but did not. He could not remember when the tests were done, only 
that he performed them somewhere between September and December. He verbally gave his 
results to the State over the phone. (2/9/00-49-96) He admitted that the tests cannot tell 
where the call was made or where the cell phone was within the wide cell site. He admitted 
that some calls could trigger as many as three different cell sites. (2/9/00- 1 42- 1 72) 

The State rested its case and Appellant called Rebecca Walker, a close friend of both 



15 



Appellant and Hae, who testified that even after Appellant and Hae broke up, they still cared 
for each other and were still friends. (2/23/00-142) She also testified that Appellant was not 
possessive about Hae, and he was extremely upset by her disappearance. (2/23/00-1 60, 1 75) 

Syed Rahman, Appellant's father, testified that Appellant had been in the top 5% of 
his class academically since eighth grade. Appellant led prayers at the family's place of 
worship, which is a high honor. Mr. Rahman testified that although his religion does not 
permit Appellant to date girls, Appellant was simply encouraged to do the right thing, and not 
to date girls. (2/23/00-285-291) On January 13, 1999, Appellant attended religious services 
with his father from 7:30 p.m. to 10:30 p.m. (2/24/00-6) 

Andrew Davis, Appellant's investigator, testified that Hae's bank records showed that 
on January 13, 1999, she made a purchase of $1.71 at Crown gas station at Harford Road and 
Northern Parkway, which is far from Woodlawn. (2/24/00-1 06) 

Saad Chaudry, Appellant's close friend, testified that Appellant obtained the cell 
phone in order to call girls. He also explained that the cell phone was programmed with 
phone numbers of Appellant's friends such that the numbers could automatically be dialed. 
(2/24/00-145) He said that after Hae and Appellant broke up, Appellant was "laid back" 
about it, and showed interest in other girls. (2/24/00-126) 

Bettye Stuckey, Appellant's guidance counselor, testified that Appellant was a bright, 
enthusiastic and delightful student. He was admitted to college at the University of Maryland 
and the University of Maryland at Baltimore County. (2/24/00-203) 



16 



Other facts will be discussed as necessary, infra. 

IV. ARGUMENT 

A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT, 
VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS 
RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL 
EVIDENCE OF AN ORAL SIDE AGREEMENT WITH ITS KEY 
WITNESS, AND WHEN IT INTRODUCED FALSE AND 
MISLEADING EVIDENCE, AND THE TRIAL COURT COMMITTED 
REVERSIBLE ERROR IN PROHIBITING APPELLANT FROM 
PRESENTING THIS EVIDENCE TO THE JURY. 

Summary of Argument 

The prosecutor suppressed favorable material evidence relating to the plea agreement 
with its key witness, Jay Wilds. The prosecutor also introduced false and misleading 
evidence. The suppressed evidence included the fact that there was a separate oral 
agreement with Jay Wilds which permitted Wilds to withdraw from the plea agreement at any 
time, which fact was not included in the written plea agreement furnished to Appellant and 
introduced by the State at trial. In addition, the State hid the fact that it provided Wilds with 
a free private attorney, who recommended that Wilds sign the plea agreement. The State 
waited to charge Wilds with a crime until after he accepted the services of the free private 
attorney selected by the State so that Wilds would be ineligible to obtain a public defender. 
Wilds earlier sought to obtain the services of a public defender, but was told he could not 
receive a public defender until after he was charged with a crime. 

This and other evidence was suppressed by the State, and was discovered by . 
Appellant's trial counsel during and after Wilds' highly damaging testimony against 

17 



Appellant. When Appellant attempted to learn all of the facts surrounding the plea 
agreement, the State objected and the trial court made numerous evidentiary rulings 
preventing Appellant from presenting all of the terms of the plea agreement and the full 
circumstances surrounding the plea agreement to the jury (see infra ). The State's conduct 
amounted to prosecutorial misconduct, violated Brady? violated Appellant's rights to due 
process of law, and the trial court's rulings constituted reversible error. 

The standard for determining whether the State violated Brady is whether the 

prosecutor suppressed favorable material evidence. Conyers v. State . Md. , A.2d 

(No. 26. Sept. Term 2001) (filed February 5, 2002). The standard for determining 

prosecutorial misconduct is whether the misconduct actually prejudiced the defendant and 
whether the prosecution acted intentionally to prejudice the defendant. Clark v. State . 364 
Md. 61 1, 774 A.2d 1 136 (2001). A trial court's evidentiary rulings are reviewed for abuse 
of discretion. Fontaine v. State . 134 Md. App. 275, 287-88, 759 A.2d 1 136, cert, denied . 362 
Md. 188 (2000). 

1. The State suppressed favorable material evidence and introduced and elicited false and 
misleading testimony relating to the plea agreement with its key witness in violation of 
Brady . 

a) Facts 

Jay Wilds, the chief prosecution witness, testified on direct examination that he signed 



3 Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1 194, 10 L.Ed.2d 215 (1963). 

18 



a plea agreement and pled guilty on September 7, 19.99 4 to being an accessory after the fact 
with regard to the death of Hae Min Lee. (2/4/00-162) Wilds testified that as long as he 
told the truth, the State agreed that his sentence would be capped at two years. (2/4/00-1 63) 
The State offered the written plea agreement into evidence. (State's Exhibit 35, App. 1-4) 
(2/4/00-162, App. 5) The prosecutor asked Wilds, "[a]nd that's the plea agreement you 
entered into when you pled guilty to accessory in this murder? A. Yes." (2/4/00-162-63, 
App. 5-6) The written agreement provided that if Wilds failed to complete the terms of the 
agreement, the State will recommend a sentence of five years incarceration. (Exhibit 35, 
page 2 #2(d)) The agreement also expressly provided that "[Wilds] shall not be permitted to 
withdraw a guilty plea tendered pursuant to this Agreement under any circumstances." 
(Exhibit 35 at page 3, #5) The Agreement also provides "[fjhere are no other agreements, 
promises or understandings between [Wilds] and the State. This Agreement can only be 
amended in a writing signed by all the parties." (Exhibit 35, Paragraph 9 page 3) 

After the State rested its case, a few days from the end of a nearly six-week trial, 
Appellant discovered the existence of an oral side agreement between the State and Wilds, 
that was not turned over by the State in discovery and was fortuitously discovered by 
Appellant during trial. This side agreement provided that Wilds could withdraw from the 
plea agreement at any time, contrary to the written plea agreement and contrary to the 



"Appellant's first trial was scheduled to begin on October 13, 1999. 

19 



assertions" of the prosecutor.' This discovery unfolded out of the presence of the jury, as 
follows: 

[BY DEFENSE COUNSEL]: [Ms. Benaroya, Wilds' attorney] would have 
said, but — couldn't go any further and cut off questioning of her, that ~ she 
may [sic - made]- with Mr. Urick [the prosecutor] on the 7 th [of September, 
1999], in the presence of her client and that she made sure [her] client 
understood that one of the benefits that's not reflected in the typewritten plea 
agreement and would not be reflected on the record was an agreement that 
would allow Mr. Wilds to withdraw his plea at a time later than the 7 th , and 
she would have testified that's what she told me in the presence of my law 
clerk, that her concern and insistence on that being a benefit of the bargain 
because she felt that .... since it was so unusual that his lawyer be provided 
by the prosecutor that he had an absolute right, after reflection, to withdraw 
the plea. 

(2/22/00-63-64, App. 7-8) There is reference to this questioning of Benaroya occurring out 
of the presence of the jury and under oath (2/23/00-238), but it is not part of the record. 
Apparently, the frial court was present when Ms. Benaroya told this to Appellant's counsel, 
and agreed that defense counsel's recitation of Benaroya's testimony was accurate: 6 



5 The prosecutor told the trial court in a bench conference: 

It was made clear to him that he was entering a guilty plea, that it would be 
a binding plea. . . It was made clear to him that those procedures were 
binding, that they could be done without his presence, in his absence 

(2/4/00-203) 

6 At the close of the previous trial day's testimony, February 18, 2000 (February 
21. 2000 was a holiday), the trial court stated: "I still need to speak to her [Benaroya] 
myself . . . "which may shed light on when tins questioning of Benaroya took place. 
(2/18//00-202) 



20 



THE COURT: She did say it She said it. She said that she was - it was 

her understanding that the Defendant Wilds, her client, could withdraw his 
plea. 

[BY DEFENSE COUNSEL]: Right. At any time. 
THE COURT: That's what she said. 



(2/22/00-71) Mr. Urick, the prosecutor, denied that this was part of the plea. (2/22/00-66) 

Appellant argued to the trial court at a bench conference why this information was 

important and relevant to present to the jury : 

As to that issue ... I believe we're absolutely entitled to get in all the benefits 
of the bargain that were extended to Mr. Wilds, whether or not Mr. Wilds 
testifies truthfully as to what they are. 

Now, the fact finder has a right to consider all of the benefits of the bargain in 
assessing whether or not the bargains have anything to do with influencing his 
testimony or what the bargain is or what extent he may be beholding [sic] to 
him when he made the bargain, both what's written and what's not written, 
and it's up to the jury to decide whether Mr. Wilds is telling the truth and to 
decide as to all thing, including what Mr. Wilds' perception of the bargain ~ 
or his lawyer says that was part of the bargain, it was made in front of him, and 
that goes directly to impeach him. And that's certainly not attorney/client 
privilege, made in the presence of and in the earshot of Mr. Urick. 

Since the bargain that the jury knows about makes Mr. Urick the arbiter of 
truth, the issue of whether or not there's a side deal that Mr. Wilds may not 
want to admit to because if, in fact, it's true it makes him out to be a liar as to 
that issue, as to what the bargain was .... 

(2/22/00-65) 

When Appellant requested permission to introduce evidence of the side agreement 
through the testimony of Benaroya and by recalling Wilds, who had finished testifying before 



21 



Appellant learned of the side agreement, the trial court ruled that Appellant could not call 
Benaroya or recall Wilds to testify in front of the jury: "I believe that calling [Benaroya] 
would not be appropriate and it would just take us off on a needless presentation of evidence. 
And I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App. 
9) Similarly, the trial court denied Appellant's previous motion to question Mr. Urick as a 
witness out of the presence of the jury to determine the circumstances surrounding the plea 
negotiations. (2/1 1/00-23, App. 10) The trial court also denied Appellant's previous motion 
to strike all of Wilds testimony because the State failed to disclose all of the circumstances 
surrounding the plea negotiations.(2/l 5/00-34, App. 1 1) The evidentiary rulings will be dealt 
with separately, infra . 

In addition to the side oral agreement, the State suppressed other evidence. On cross- 
examination of Wilds by Appellant, over objections from the State, it was disclosed for the 
first time that the State had provided Wilds with a free private attorney: 

[BY DEFENSE COUNSEL]: Incidentally, at what point did your lawyer come 
about after the 1 3 th of April? 

[BY THE STATE]: Objection. 

THE COURT: Sustained. 

[BY DEFENSE COUNSEL]: Did anyone help provide you a lawyer? 
[BY THE STATE]: Objection. 
THE COURT: Overruled. 
MR. WILDS: Yes, ma'am. 

22 



QWho? 
A Mr. Urick. 

Q Mr. Urick the prosecutor in this case helped provide you a lawyer? 
A Yes, ma'am. 

Q And was that before or after you got notice that you would be charged by 
him? 

[BY THE STATE]: Objection. 
THE COURT: Overruled. 
MR. WILDS: Before, ma'am. 

[BY DEFENSE COUNSEL]: Did you meet your lawyer before the day you 
signed [the plea agreement]? 

MR. WILDS: No, ma'am. 

* * * 

Q . . . . Now, you didn't have to pay for your lawyer, did you? 

[BY THE STATE]: Objection. 

THE COURT: Sustained. 
(2/10/00-155-56, 159, App. 12-13) (Emphasis supplied) 7 Wilds testified in the jury's 
presence that when Mr. Urick introduced the lawyer, Ms. Benaroya, to him, Mr. Urick stated 
that she was "a very good lawyer." (2/15/00-60) 



7 Later, Wilds testified that he considered a free private attorney to be a benefit, 
because he could not afford private counsel. (2/15/00-127) 



23 



As Appellant delved into the circumstances surrounding the State providing the chief 
prosecution witness with a free private attorney, it became clear that the State attempted to 
and did improperly influence the witness to retain the attorney that the State chose, whom 
the State believed would recommend that Wilds sign the plea agreement. The State, 
knowing that Wilds could not obtain the advice of a public defender until he was actually 
charged, refrained from charging Wilds until after he met with and retained the services of 
Ms. Benaroya. (2/10/00-156) Wilds testified out of the presence of the jury that he had 
attempted to get a public defender prior to September 7, but was told by the Office of the 
public defender that he could not get an attorney until he was charged. (2/ 1 1 /00-2 1 3 ) Wilds 
was charged on September 7, 1 999, after he was introduced to the free private attorney. 
(2/1/00-182) Wilds met with Ms. Benaroya, agreed to accept her as his attorney, and 
negotiated and signed the plea agreement. Immediately after signing the agreement, Wilds 
was taken to a "guilty plea" hearing. 

The State failed to disclose other favorable evidence as well. On cross-examination 
by Appellant, Wilds, over objections from the State, disclosed for the first time that no 
statement of facts was read at his "guilty plea" proceeding. (2/4/00- 1 93 -94) Thus, there was 
no factual basis for the plea as required by Maryland Rule 4-242, and no finding of guilt 
could have been made. The plea therefore was not binding, and Wilds or the State could 
withdraw it at any time, contrary to what the jury was told and contrary to the terms of the 
written plea agreement. As defense counsel further attempted to find out exactly what 



24 



transpired with Jay Wilds, the guilty plea and the free private attorney, it became apparent, 
even to the trial court, that the State was trying to hide the true nature of the "guilty plea" 
proceedings: 

(Jury not present) 

THE COURT: ... It would appear to the Court that every effort was made to 
hide the existence of Mr. Wilds['] plea or attempted [sic] to plead because this 
[Wilds' court file] says guilty verdict held sub curia. Which means what you 
did was everything except for have the Court find the Defendant guilty. He 
held the issue of whether or not the Defendant was guilty sub curia pending 
the State providing a statement of facts. It appears the only reason why one 
would do that, in my mind is so that there would be no record of a guilty plea 
because if there's no guilty finding [then] he hasn't been found guilty. . . . 

The other thing that I find interesting is that as Counsel has pointed out, I've 

never seen a file like this before It appears very, very odd and unusual 

and I can see why Ms. Gutierrez [defense counsel] would start to wonder. 

(2/1 1/00-122-23) The trial court noted that the State was misrepresenting to the trial court, 

defense counsel, and the jury that Mr. Wilds pled guilty, when, in fact, it was not a guilty 

plea: "Well, what was difficult Mr. Urick, the other day when we asked, I know I asked 

whether or not Mr. Wilds pled guilty, you said he pled guilty. . . . But the verdict wasn't 

entered. I mean to say, to lead the Court to believe that the verdict was entered is not true. 

... the reason [that defense] Counsel has been asking over and over, how could there be a 

guilty plea with no statement of facts. It's very simple, is that no guilty verdict was entered, 

that's how you kept the statement of facts out." (2/1 1/00-126-27) 

The State hid still more evidence. During proceedings outside the presence of the jury 

it was learned that Judge McCurdy, the Judge who heard the "guilty plea" or "attempted 



25 



guilty plea," had an ex parte hearing with Wilds and his attorney, Ms. Benaroya, after the 
guilty plea hearing. (2/1 1/00-128) This "post-plea" hearing was held at the request of the 
State, which waived its right to be present at the hearing. In the face of direct questioning 
from the trial court, the State hid the fact that sometime after the September 7, 1999 "guilty 
plea" hearing, Jay Wilds became disenchanted with his attorney, questioned whether that 
attorney was given to him by the State solely for the purpose of advising him to sign the plea 
agreement, questioned whether the attorney was loyal to him or to the State, and thought 
about withdrawing his plea, (2/1 1/00-150, 160, 168, 171) Wilds called Judge McCurdy to 
inform him of his doubts and problems. Wilds also called the prosecutor and informed the 
State of his situation. (2/1 1/00-204-06) 

The trial court repeatedly asked the State specifically whether it knew if something 
happened after the plea to necessitate the post-plea hearing, and the State at least three times 
answered falsely that it did not. The State knew that Wilds called Judge McCurdy to inform 
him of these problems, because Wilds also called the State and informed it of the problems. 
(2/1 1/00-204-06) It is clear that the prosecutor deliberately failed to tell the trial court why 
the hearing was necessary: 

(Jury not present) 

[BY THE STATE]: When we asked Judge McCurdy to advise him of his right 
to Counsel due to review of that to make sure he understood it and that he was 
in fact, his assistance of counsel. 

THE COURT: And when did that happen? 



26 



[BY THE STATE]: It happened sometime in September. I did not . . . Ms. 
Benaroya [Wilds' attorney] showed up with him that day, he was given the 
option, you know, explained. In abundance of caution we asked Judge 
McCurdy to do an in camera review to make sure that he understood his right 
to counsel, that he was making his election of his counsel. Judge McCurdy did 
a review of that with him. 

[BY DEFENSE COUNSEL]: . . . Having taken the beginnings of the plea or 
if you believe Mr. Urick's version, well he thought that was a guilty plea then 
what reason would exist to ask the Judge to review the voluntariness or the 
adequacy of the satisfaction with the lawyer. 

THE COURT: Good question. 

[BY DEFENSE COUNSEL]: Something had to happen. 
THE COURT: Did something happen post plea[?] 

Mr. URICK: We were just discussing all possibilities . We thought in 
abundance of caution we should. 

THE COURT: What does that mean? Did something happen post plea? 

MR. URICK. Post plea. No, it was debating around our office how we were 
proceeding. 

THE COURT: Post plea? 
MR. URICK: Yeah . 

THE COURT: On what? If he's pled guilty. The only thing his disposition 
you need to have a conversation with the witness as to whether or not he's 
going to withdraw his plea, is that what happened? 

MR. URICK: No, we wanted Judge McCurdy to - do that we had made sure 
there was an independent judicial advisement of his right to counsel, that he 
understood that he was exercising it. We thought - 



27 



THE COURT: That's post plea. I'm asking after the plea. Okay. Let me get 
the scenario right because I'm getting confused. 

* * * 

And you asked [Judge McCurdy] to set up the hearing? 
MR. URICK: Yes. 

THE COURT: You're suggesting that a Judge would have ex parte 
communications with a Defendant and his attorney without the presence of the 
State? 

MR. URICK: It was with our permission. We waived our presence. 
(2/1 1/00-1 28-1 34)(emphasis suppled) It was not until after this exchange that Wilds testified 
out of the presence of the jury that the trial court and defense counsel learned that the reason 
for the hearing was that Wilds had second thoughts about the loyalties of the attorney 
provided by the State and was having doubts about his guilty plea. (2/1 1/00-205) 

By waiving its right to be present, the State ensured the fact that an informal, off-the- 
record hearing in the Judge's chambers would be held. 8 The fact that the State waived its 
right to be present at the post-plea hearing in which its key witness in a murder prosecution 
could decide to withdraw his plea demonstrates the lengths to which it was willing to go to 
hide the fact that it provided the benefit of a free private attorney to its chief prosecution 
witness, and to hide its knowledge of the fact that Wilds was unhappy with that free private 

8 Although Wilds testified out of the presence of the jury that he believed the ex 
parte hearing was on the record, no record or evidence of the hearing could be found. 
(2/22/00-63) 



28 



State-provided attorney. 

In sum, the State failed to disclose the following information to Appellant: 9 the side 
agreement permitting Wilds to withdraw at any time from the plea agreement without court 
approval; Wilds never entered a binding and completed guilty plea because the State 
intentionally did not enter into evidence at that hearing a statement of facts in support of the 
plea; the State knowingly allowed Wilds to testify falsely that he entered a guilty plea; the 
State obtained and provided for Wilds a free private attorney; Wilds was not charged with 
a crime until just after he agreed to be represented by the free private attorney, so that Wilds 
would not be eligible to obtain a public defender who may not have recommended that he 
sign the plea agreement; Wilds became disenchanted with his free private attorney 
jeopardizing the "guilty plea"; the State arranged for Judge MeCurdy to have an ex parte 
hearing with Wilds and his attorney, the record of which could not be found (2/22/00-63), 
where the Judge addressed Wilds' concerns. 10 Based upon these actions, Appellant moved 



9 It should be noted that the State, prior to trial, moved for a Protective Order to 
withhold discovery of all statements made by Jay Wilds. (R. 144-147) Appellant 
requested: pretrial "all information about Jay Wilds" including his statements. (R. 509- 
525) The trial court denied the State's Motion and ordered them to turn over such 
materials. (R. 540-544) 

I0 It is interesting to note that when Wilds was sentenced after Appellant's trial, in 
addition to noting that Wilds had fulfilled his plea agreement, Mr. Urick made an 
additional recommendation for leniency based upon Mr. Urick' s belief that Wilds showed 
remorse for his actions. Based upon this recommendation, the Judge gave Wilds a 
suspended sentence, instead of the two years imprisonment called for by the plea 
agreement which was admitted before the jury at Appellant's trial. State v. Wilds . 
29925000 1 (July 6, 2000). Obviously, had Appellant known of this additional 
recommendation, he would have used it to further impeach Wilds' credibility by arguing 



29 



at trial to strike Wilds' testimony, but the trial court denied the motion. (2/15/00-34) See 
infra . The State's actions in the present case violate Brady , 
b) The Law 

Just this month, the Court of Appeals decided Conyers v. State. Md. , 

A.2d (No. 26. Sept. Term 2001) (filed February 5, 2002). In Conyers . the Court of 

Appeals reversed two murder convictions and a death sentence because the prosecution 
withheld from the defense the fact that a key prosecution witness, Charles Johnson, asked for 
reduction in his sentence on his pending charges before he would sign a statement he had 
given to police inculpating Conyers. The State did disclose prior to trial that the plea 
agreement required Johnson to plead guilty to a misdemeanor charge of conspiracy to commit 
robbery and the State would recommend a sentence of one to six years imprisonment, 
whereas Johnson faced a total of 244 years before he cut a deal. The plea agreement 
required that Johnson testify truthfully against Conyers, and was introduced as evidence at 
trial. 

On direct examination at trial, the prosecutor asked Johnson whether he requested any 
favors in exchange for the information he gave to police, and Johnson replied in the negative. 
The police officer who took Johnson's statement, Detective Marll, testified in response to the 
prosecutor's questions at trial that at no time did Johnson ever ask for a favor in exchange 



Wilds would have additional motive to testify since he was getting no jail time versus two 
years of jail time. 

30 



for giving the information. At the post conviction hearing, Marll testified in response to 
Conyers' question that Johnson refused to sign the statement unless he had a commitment 
for a plea bargain. The State argued to the Court of Appeals that the trial testimony of 
Johnson and Marll was technically accurate, because Johnson had given the information 
before he asked for a favor, and requested the favor in exchange for his testimony at Conyers' 
trial. The Court of Appeals disagreed, and held that the State exhibited a "lack of candor" 
and used a "deceptive approach." Slip op. at 32-33. 

In determining whether there was a violation of Brady,, the Court noted the appropriate 
standard: 

"(1) that the prosecutor suppressed or withheld evidence that is (2) favorable 
to the defense-either because it is exculpatory, provides a basis for mitigation 
of sentence, or because it provides grounds for impeaching a witness~and (3) 
that the suppressed evidence is material." 

Slip op. at 25 ( quoting Wilson v. State . 363 Md. 333, 345-46, 768 A.2d 675 (2001)). The 

Court held that the State suppressed the information regarding Johnson's refusal to sign the 

statement until he got a favor. Id at 33-34. The Court further held that the information was 

favorable to Conyers because it would have: 

strengthened Petitioner's assertion that Johnson had fabricated Petitioner's 
alleged confession in an effort to gamer a benefit on outstanding charges. . . 
. Defense counsel was entitled to explore and argue from all of the pertinent 
evidence as to Johnson's bias and credibility. Suppression of this evidence 
deprived the jurors of a full opportunity to evaluate the credibility of Johnson's 
testimony, and Detective Marll 's corroborating testimony, and deprived 
Petitioner of potentially valuable impeachment evidence. . . . 

Similar to Wilson, the value of the suppressed information as impeachment 



31 



evidence was confirmed by the State's efforts to conceal it from Petitioner. . 
. . The State's conduct continued in its closing arguments at trial and 
sentencing, in which it extolled Johnson's credibility as a witness, knowing its 
own sins of omission. 

IcL at 38-39. The Court held the evidence was favorable even though Johnson was fully 
cross-examined as to the plea agreement, and defense counsel vigorously argued to the jury 
that Johnson's motive in testifying was to gain a benefit for himself. Vigorous cross- 
examination: 

does not necessarily vitiate any error caused by the State's failure to disclose 
this impeachment evidence. Ware v. State . 363 Md. at 351, 768 A.2d at 684 
(stating that cross-examination of a witness regarding inducement "to testify 
does not substitute for adequate disclosure"); Boone . 541 F.2d at 451 (noting 
that "[n]o matter how good defense counsel's argument may have been, it was 
apparent to the jury that it rested upon conjecture - a conjecture which the 

prosecution disputed."). See also . Martin v. State . Ala. Crim App. , 

2001 Ala. Crim. App. Lexis 298, 21 (2001) (likening defendant to a "fighter 
with one hand tied behind his back ~ the fact that he was able to land a few 
punches in cross-examination with one fist did not make the match a fair 
one."). 

Id at 39. 

In discussing materiality, the Court first noted that the standard where the State 
knowingly uses perjured testimony is whether there is any reasonable likelihood that the false 
testimony affected the jury. IcL at 40 ( citing Napue v. People of III . 360 U.S. 264, 269, 79 
S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). The materiality standard pursuant to United 
States v. Baelev . 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) and Brady 
where the State fails to turn over exculpatory evidence is whether: 

"there is a reasonable probability that, had the evidence been disclosed to the 



32 



defense, the result of the proceeding, would have been different. A 'reasonable 
probability 1 is a probability sufficient to undermine confidence in the outcome." 
Bagley . 473 U.S. at 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481. 

Wilson . 363 Md. at 347; see also Conyers at 41 . The Conyers Court further stated that a 

reasonable probability is "'a substantial possibility that ... the result of the trial would have 

been different.'" Id (citation omitted). 

Based upon the Bagley/Brady standard, the Court in Conyers held that the suppression 

of the evidence "relating to Johnson's complete negotiations for a benefit" was material, and 

that, had the evidence been disclosed, "there was a substantial possibility that the result 

would have been different." Slip op. at 43. The Court noted that Johnson was a key witness 

in establishing that Conyers was a principal in the murder, which was a prerequisite for the 

application of the death penalty. In addition, the Court held that to prove materiality, it was 

not necessary to prove the evidence was insufficient to sustain the conviction absent the 

testimony of the key witness. The Conyers Court held that even though there was sufficient 

evidence other than Johnson's testimony on the issue of principalship, the "taint" from the 

withheld evidence "so undermines confidence in the convictions" that a new trial is 

warranted. IdL at 45. Finally, the Court noted that the 

importance of Johnson's credibility was evidenced by the State's efforts to 
argue his credibility in its last words to the jury. See Wilson . 363 Md. at 355, 
768 A.2d at 687 (recognizing that "the 'likely damage' of the State's 
suppression of evidence in this case 'is best understood by taking the word of 
the prosecutor ... during closing argument.' ") ( quoting Ware . 348 Md. at 53, 
702 A.2d at 715 (citations omitted)). 



33 



Rat 46.. 

Likewise, the Court of Appeals in Wilson reversed two robbery deadly weapon 
convictions based on the State's failure to disclose evidence relating to plea agreements with 
two key prosecution witnesses. 

The Court held that, although the witnesses testified as to their plea agreements, the 
actual agreements were more favorable than the witnesses described to the jury. 
The Court specifically held that: "The failure to disclose evidence relating to anv 
understanding or agreement with a key witness as to a future prosecution, in particular, 
violates due process, because such evidence is relevant to witness's credibility." Id 
(Emphasis supplied). 11 

c) Analysis 

Here, as in Conyers and Wilson , the evidence relating to the plea agreement was 
suppressed as it was not disclosed to Appellant prior to trial. Since the evidence of the side 
agreement was the term of a plea agreement between the State and its chief witness, and the 



"In Wilson, the Court examined additional factors in determining whether the 
suppressed evidence was material: * 

the specificity of the defendant's request for disclosure of materials; the 
closeness of the case against the defendant and the cumulative weight of the 
other independent evidence of guilt; the centrality of the particular witness 
to the State's case; the significance of the inducement to testify; whether 
and to what extent the witness's credibility is already in question; and the 
prosecutorial emphasis on the witness's credibility in closing arguments. 

363 Md. at 352 (citations omitted). 

34 



other evidence related to the plea agreement, the evidence was favorable to Appellant. 
Conyers . Slip op. at 38; Wilson . 363 Md. at 35 1 . Even the trial court found, as a matter of 
fact, that providing the attorney was a benefit. (2/1 1/00-55) 12 While the jury learned through 
Appellant's cross-examination of Wilds that the State provided him a free private attorney, 
it was not informed whether the State paid his attorney. (2/15/00-68, App. 14) This fact is 
relevant to the nature of the benefit provided by the State. Even the State conceded it would 
be a benefit if the State paid the attorney. (2/1 1/00-56) 

Moreover, the jury never learned that the procedures used by the State in providing 
an attorney are rare, and in fact no one including the Public Defender's Office was aware that 
this had ever occurred in any other case. The trial court did not permit Appellant to elicit 
these facts. (2/23/00-239, 246 App. 15, 19) See infra. Also, the trial court refused to permit 
Appellant to inquire what changes were requested by Wilds to the plea agreement during plea 
negotiations. (2/15/00-75, App. 16) The jury also never learned that the State withheld the 
charges so that Wilds would not qualify for a public defender until after he agreed to be 
represented by Benaroya. This evidence could have been used to impeach Wilds, to show 
the pressure exerted on Wilds to sign the agreement and testify against Appellant and prevent 
him from backing out of his agreement This is relevant to Wilds' bias, motive to testify, and 

12 The trial court instructed the jury that"[i]f you find that Jay Wilds' lawyer was 
provided with the assistance of the State at no cost, this was a benefit that Mr. Wilds 
received as part of his bargain with the State. You may consider this in the same way as 
you may consider the plea agreement itself as to what, of any, pressure existed on Mr. 
Wilds when he testified in this case." (2/25/00-36) 



35 



credibility. In any event, vigorous cross-examination as to inducement to testify does not 
substitute for full disclosure. Conyers at 39, Ware . 363 Md. at 35 1 . Thus, the evidence was 
favorable to Appellant as a matter of law since it relates to the impeachment of the chief 
prosecution witness. Seg Conyers . at 38; Wilson . 363 Md. at 346. 

In addition, here, as in Conyers . that the evidence was favorable to Appellant is 
evidenced by the State's efforts to conceal it. The State's efforts to conceal the evidence 
went far beyond the efforts of the State in Conyers that amounted to several carefully-crafted 
questions. See Conyers at 38. Here, the State engaged in a pattern of deception including 
permitting Wilds to testify falsely that he had completed a binding guilty plea, and repeatedly 
denying to the trial court in the face of direct questions its knowledge that the reason for the 
ex parte post-plea hearing was that Wilds was having doubts about proceeding further. 
Moreover, the State repeatedly objected during cross-examination of Wilds, and moved in 
limine to preclude Appellant from asking Wilds questions about how he obtained his 
attorney. (2/1 1/00-54) The State also opposed Appellant's requests to call Benaroya and 
recall Wilds to testify for the jury. 

It is necessary to determine whether the Napue or the Bagley/Brady standard for 
materiality applies in the present case. Based upon the fact that the prosecutor knowingly 
entered the incomplete plea agreement into evidence, without the side agreement, failed to 
elicit the existence of the side agreement from Wilds, and stated on the record to the trial 



36 



court that there was no side agreement, the stricter Napue standard of materiality applies. 13 
The Napue standard is whether there is any reasonable likelihood that the false testimony 
affected the jury. Conyers. Slip op. at 40 ( citing Napue v. People of ill . 360 U.S. 264, 269, 
79 S.Ct. 1 173, 1 177, 3 L.Ed.2d 1217 (1959) (reversible error for prosecutor to fail to correct 
false testimony by its witness that he received no promises of leniency in exchange for his 
testimony); see also Wilson . 363 Md. at 346. Had the jury known that Wilds could have 
withdrawn from the plea agreement at any time, the jury may well have discredited Wilds' 
testimony. The jury may have believed that Wilds would have an additional incentive to 
make his testimony more pleasing to the State if he could get out of the agreement, and then 
the State would not recharge him. See Wilson. 363 Md. at 347. Thus, the side agreement 
in the present case was directly related to the jury's assessment of Wilds' credibility. Since 
Wilds was the key prosecution witness upon which the State's entire case rested, the failure 
to disclose the side agreement and other impeachment evidence creates a reasonable 
likelihood that the suppression affected the jury. 



13 In Wilson . 363 Md. at 351, the Court noted: 

In addition, the Massachusetts Supreme Judicial Court recently held that 
any time that, " 'through misfeasance or nonfeasance by the prosecutor, false 
testimony is introduced concerning an arrangement between the witness 
and the prosecutor, a strict standard of materiality is applied. A conviction 
will be set aside if there is "any reasonable likelihood that the false 
testimony could have affected the judgment of the jury." 1 " Commonwealth 
v. Hill . 432 Mass. 704, 739 N.E.2d 670, 679 (2000) (quoting 
Commonwealth v. Gildav . 382 Mass. 166, 415 N.E.2d 797, 803 (1980)). 



37 



In the alternative, should this Court find that the Bagley/Brady standard of materiality 
is appropriate, that is, that there is a reasonable likelihood or substantial possibility that had 
the evidence of the side agreement and other impeachment evidence been disclosed, the 
result of the proceeding would have been different, Appellant demonstrates materiality under 
that standard as well. In the present case, all of the evidence withheld was material. 14 The 
side agreement was material because, had the jury heard about it, it may have found that 
Wilds testimony was not credible. It may have determined that Wilds could have been 
influenced to make his testimony even more incriminating against Appellant with the thought 
that if the State liked his testimony, he could withdraw his plea, withdraw from the 
agreement and not be subjected to any criminal charges. 13 The suppression of the provision 
of the free attorney and the delayed charges to make Wilds ineligible for a public defender 
was material because it was evidence of the State's influence over Wilds and its desperation 



14 "[M]ateriality is assessed by considering all of the suppressed evidence 
collectively." Wilson . 363 Md. at 347. 

15 T^ie Wilson Court held: 

* The fact that [the witness] was not aware of the exact terms of the plea 
agreement only increases the significance, for purposes of assessing 
credibility, of his expectation of favorable treatment.... [A] tentative promise 
of leniency might be interpreted by a witness as contingent upon the nature 
of his testimony. Thus, there would be a greater incentive for the witness to 
try to make his testimony pleasing to the prosecutor. That a witness may 
curry favor with a prosecutor by his testimony was demonstrated when the 
prosecutor renegotiated a more favorable plea agreement with [the witness] 
after [the defendant] was convicted. 

363 Md. at 350 (citations omitted). 



38 



to have Wilds sign the agreement. Had the jury known of all of the circumstances 
surrounding the provision of the attorney, it may well have determined that the State's 
desperation showed its knowledge of its own weak case. Suppression of evidence of the non- 
binding nature of the "guilty plea" hearing was material because the jury did not know that 
as a result, the guilty plea was not binding and Wilds would not be bound by the plea 
agreement. 16 As stated above, if Wilds is not bound by the plea or the agreement, Wilds 
could have been influenced to make his testimony even more incriminating against 
Appellant. 

The State's closing argument to the jury is additional evidence of materiality in the 
present case, as it was in Conyers . The State in which it repeatedly argued Wilds' credibility. 
The State argued: "You don't have to like Jay Wilds or like what he did to know that he's 
telling the truth." (2/25/00-58) "You know he knows what happened." (2/25/00-58) "Jay 
Wilds was sincere. ... He was honest with you." (2/25/00-60) "That makes sense with what 
Jay Wilds is telling you." (2/25/00-67) "Now, the Defense told you it's fantastic that Jay 
Wilds could look in the trunk of a car for 10 seconds and see taupe stockings and identify 
Hey Lee. No, it's not." (2/25/00-127) 



16 While it is true that the jury was eventually instructed by the trial court that Wilds 
did not yet enter a completed guilty plea because a statement of facts was not provided at 
the hearing on September 7, 1999, (2/25/00-35), the jury never learned that the legal 
effect of the failure to have a guilty verdict entered meant that Wilds could withdraw his 
guilty plea at any time. Regardless of the Maryland Rules, the jury still believed that the 
plea agreement was in full force because it was unaware of the side agreement. 

39 



There was a reasonable likelihood or substantial possibility that absent the suppression 
of the side agreement and other impeachment evidence, the result would have been different. 
As in Conyers . the nature of Wilds' testimony and his importance to the case rendered the 
suppressed evidence material, by the State's own admission: "[l]et's talk about Jay Wilds 
because, clearly, this case hinges on his testimony." (2/25/00-57) In addition, Wilds' 
credibility was in serious doubt. It was not contested that Wilds had lied in every pretrial 
statement he gave to the police. (2/1 1/00-205) Further impeachment by Appellant could have 
caused the jury to completely disregard his testimony, which would have resulted in the 
acquittal of Appellant. As such, the suppression of the evidence in the present case was 
material, constituted a violation of Brady , and Appellant's rights to due process under the 1 4 * 
Amendment and Article 24 of the Maryland Declaration of Rights. Appellant's convictions 
must therefore be reversed. See Wilson . 363 Md. at 341-42 ( "The failure to disclose 
evidence relating to any understanding or agreement with a key witness as to a future 
prosecution, in particular, violates due process, because such evidence is relevant to witness's 
credibility."). 17 Thus, the evidence withheld was material and violated Brady . 



17 The trial court found that the State did not err in suppressing evidence that it 
provided Wilds with a free private attorney on the grounds that "the State honestly and in 
good faith did not perceive it as a benefit." (2/1 1/00-56, App. 17) The trial court was 
clearly erroneous in that the good faith of the prosecutor is irrelevant in a Brady 
determination. See Wilson , 363 Md. at 345-46 ("the suppression by the prosecution of 
evidence . . . violates due process . . . irrespective of the good faith or bad faith of the 
prosecution.") (citation omitted). 

40 



2. The State's actions constituted prosecutorial misconduct. 

a) Facts 

The State suppressed material favorable evidence, presented false and incomplete 
testimony, misrepresented to the trial court and the jury that Wilds entered a completed guilty 
plea, and obstructed Appellant's attempts to obtain information independently from the State. 
The State was not truthful with the trial court when it was directly questioned regarding the 
reason for the post-plea hearing. This lack of candor was in furtherance of the State 
suppressing evidence regarding the plea agreement with its key witness. 

b) The Law 

The standard for proving prosecutorial misconduct is whether the prosecutor acted in 
bad faith, to gain a tactical advantage, and caused actual prejudice to the defendant. See 
Clark v. State .. 364 Md. 61 1, 774 A.2d 1 136 (2001) (preindictment delay); see also McNeil 
v. State . 1 12 Md, App, 434, 685 A.2d 839 (1996) (prosecutorial misconduct can arise from 
failure to provide exculpatory evidence); Arizona v. Youngblood . 488U.S.51,57, 109S.Ct. 
333, 337 (1988) (destruction of potentially exculpatory evidence); United States v. Lovasco . 
431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (preindictment delay); 
United States v. Marion . 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (preindictment 
delay). 

c) Analysis 

In the present ease, the bad faith of the prosecutor was evident when he knowingly 



41 



introduced into evidence a plea agreement he knew to be materially incomplete, and failed 
to elicit testimony regarding the side agreement from Wilds. The prosecution in bad faith 
objected to Benaroya testifying in front of the jury, because then the jury would know that 
the prosecutor had not been honest with the jury. The bad faith of the prosecution is most 
evident when viewed along with the suppression of the circumstances surrounding the plea 
agreement. The pattern of suppression of evidence and misleading statements of the 
prosecutor can only lead to the conclusion that the actions were intentional, and meant to 
cause harm to Appellant's ability to fully and effectively impeach the main witness against 
him. The acts of the State caused actual prejudice, in that Appellant was unable to effectively 
cross-examine Wilds as to all of the terms of the plea agreement, including that he could 
withdraw from it at any time without a judicial finding that it would be in the interest of 
justice. See Maryland Rule 4-242. Moreover, Appellant was actually prejudiced because the 
jury did not hear all the terms of the plea agreement, or know that Wilds could withdraw his 
plea of guilty at any time. All of the suppressed evidence was exculpatory, in that it would 
have negatively effected Wilds' credibility. As such, the jury could not fully and adequately 
judge Wilds' credibility. Had the jury had all of the impeachment evidence, it may well have 
concluded that Wilds was not to be believed. As the State's case hinged on Wilds' 
testimony, Appellant's convictions must be reversed on the grounds of prosecutorial 
misconduct. 



42 



3. The trial court committed reversible error in prohibiting Appellant from calling Benaroya 
and recalling Wilds as a witness. 

a) Facts 

The trial court ruled that Appellant could not call Benaroya as a witness or recall 
Wilds as a witness to elicit evidence that the State had an oral side agreement with Wilds 
which provided that Wilds could withdraw his plea at any time. The trial court ruled that 
Appellant could not call Benaroya or recall Wilds: "I believe that calling [Benaroya] would 
not be appropriate and it would just take us off on a needless presentation of evidence. And 
I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App. 9) 

b) The Law 

In Marshall v. State. 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held 
that the trial court committed reversible error in limiting the defendant's cross examination 
of a witness as to terms of his plea agreement with the State. The Court held that the 
defendant was entitled to present evidence of terms of a plea agreement, which is relevant 
to the jury's determination of the witness' credibility, bias, and motive to testify falsely. Id 
at 197. 

c) Analysis 

The trial court committed reversible error in failing to permit Appellant to call 
Benaroya as a witness or recall Wilds to testify as to the existence of a side oral agreement, 
The side agreement was a term of the plea agreement. (2/22/00-64, App. 8) Thus, the trial 



43 



court erred in ruling that Appellant could not introduce this testimony. 

4. The trial court committed reversible error in restricting the cross-examination of Wilds. 

a) Facts 

The trial court erroneously restricted Appellant's cross examination of Jay Wilds on 
issues relating to the plea and other issues. First, Wilds' plea agreement, introduced by the 
State, provides that Wilds "represents that he/she has fully and truthfully responded to all 
question put to [him] by law enforcement during all prior interviews. (Exhibit 35, page 1 
para, la) If Wilds lied in any prior interview, "the State is immediately released from any 
obligation under this agreement." Appellant twice attempted to question Wilds about the 
effect that his admitted previous lies in prior statements to police had on the plea agreement. 
On each occasion, the trial court sustained the State's objections to these questions. 
(2/10/00-157, 2/15/00-79, App. 13, 18) In addition, the trial court sustained objections to 
Appellant's attempts to learn what changes Wilds sought to the plea agreement during plea 
negotiations. (2/15/00-75, App. 16) Also, Appellant asked Wilds whether he knew if anyone 
paid his attorney any money. An objection to this question was sustained by the trial court. 
(2/15/00-68, App. 14) 

b) The Law 

In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held 
that the defendant's Sixth Amendment rights and rights pursuant to Article 21 of the 



44 



Maryland Declaration of Rights were violated when the trial court refused to permit the 
defendant to cross-examine a witness as to a condition of his plea agreement. The Court in 
Marshall noted: 

The Confrontation Clause of the Sixth Amendment guarantees an accused in 
a criminal proceeding the right "to be confronted with the witnesses against 
him." Delaware v. VanArsdall. 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 
L.Ed.2d 674, 683 (1 986). This right means more than simply confronting the 
witness physically. Davis v. Alaska . 415 U.S. 308, 315, 94 S.Ct. 1 105, 1 1 10, 
39 L.Ed.2d 347, 353 (1974). This same right is guaranteed to a criminal 
defendant by Article 21 of the Maryland Declaration of Rights. Simmons v. 
State . 333 Md. 547, 555-56, 636 A.2d 463, 467, cert, denied . 513 U.S. 815, 
1 15 S.Ct. 70, 130 L.Ed.2d 26 (1994). The constitutional right of confrontation 
includes the right to cross-examine a witness about matters which affect the 
witness's bias, interest or motive to testify falsely. Ebb . 341 Md. at 587, 671 
A.2d at 978. An attack on the witness's credibility "is effected by means of 
cross-examination directed toward revealing possible biases, prejudices, or 
ulterior motives of the witness as they may relate directly to issues or 
personalities in the case at hand." Davis . 415 U.S. at 3 16, 94 S.Ct. at 1 1 10, 39 
L.Ed.2d at 354. 

346 Md. at 1 92, 695 A.2d at 1 87. In addition, the Court stated the trial court: 

has no discretion to limit cross-examination to such an extent as to deprive the 
accused of a fair trial. See State v. Cox . 298 Md. 1 73, 1 83, 468 A.2d 3 1 9, 324 
(1983). In assessing whether the trial court has abused its discretion in the 
limitation of cross-examination of a State's witness, the test is whether the jury 
was already in possession of sufficient information to make a discriminating 
appraisal of the particular witness's possible motives for testifying falsely in 
favor of the government. 

346 Md. at 194, 695 A.2d at 188. The Court held: 

Turning to the case at hand, we conclude that the trial judge erred in limiting 
the cross-examination of Edwards. Petitioner was prohibited from asking the 
witness any questions about the terms of his plea agreement, and although the 
trial judge said defense counsel could ask about motive, the offer was, in 
reality, a hollow gesture. Where a witness has a "deal" with the State, the jury 



45 



is entitled to know the terms of the agreement and to assess whether the "deal" 
would reasonably tend to indicate that his testimony has been influenced by 
bias or motive to testify falsely. 

346 Md. at 197, 695 A.2d at 189 (footnote omitted). The Court held that the error was not 

harmless beyond a reasonable doubt: 

The jurors were entitled to hear this evidence to enable them to make an 
informed judgment as to what weight, if any, to place on the testimony of 
Edwards, the State's only eyewitness linking Petitioner to the murder. 
Inasmuch as we conclude that defense counsel was denied the opportunity to 
cross-examine Edwards, a key prosecution witness, about the condition of 
Edwards's plea agreement that he testify at Petitioner's trial, and that agreement 
was not otherwise made known to the jury, we conclude that the jury lacked 
the opportunity to properly assess Edwards's testimonial motivation or potential 
bias. The issue of Edwards's credibility was crucial to the jury's determination 
of Petitioner's guilt. Because the jury was not provided with sufficient 
information to make a discriminating appraisal of Edwards's possible motives 
for testifying falsely or coloring his testimony in favor of the State, we cannot 
say that the trial court's error Was harmless beyond a reasonable doubt. 

346 Md. at 198, 695 A.2d at 190 (footnote omitted). 

c) Analysis 

In the present case, the trial court's failure to permit Appellant to ask Wilds about his 
plea agreement, specifically, about the effect of his previous lies on the agreement, and about 
what terms he wanted to change during negotiations violated Appellant's Sixth Amendment 
right and rights under Article 21 to confront and cross-examine witnesses against him. This 
evidence was relevant to Wilds' testimonial motivation and credibility. As such, the trial 
court erred, and the error was not harmless beyond a reasonable doubt. As in Marshall. 
Wilds was the chief prosecution witness. Impeachment of Wilds was the central mission of 



46 



the defense. Thus, Appellant is entitled to reversal of his convictions. £eg Marshall . 346 
Md. at 197; Conyers . Slip op. at 41. 

5. The trial court committed reversible error in denying Appellant's motion to strike the 
testimony of Wilds. 

a) Facts 

Appellant moved to strike the testimony of Jay Wilds as one of many remedies it 
requested in light of the State's actions discussed above. The trial court erroneously denied 
this motion. (2/15/00-34, App. 1 1) 

b) The Law 

In Taliaferro v. State. 295 Md. 376, 390-91, 456 A.2d 29, 37, cert, denied . 461 U.S. 
948, 103 S.Ct 21 14, 77 L.Ed.2d 1307 (1983), the Court approved the trial court's refusal to 
let the defendant's alibi witness testify where the name of the witness was not disclosed to 
the State until last day of trial. In University of Maryland Medical Syste ms Corp. v. Malorv. 

Md. App. , A.2d (No. 1 883, Sept. Term, 2000) (Filed Oct. 31,2001) (200 1 

WL 1 335643) WL at 1 1, in a civil context, the Court upheld the trial court's striking of 
testimony where party hid evidence in discovery: "This remedy is supported by the holding 
in Bartholomee . that 'the injury inherent in failure to make discovery is unfair surprise. It 
would seem that the only effective cure for this disease is preclusion of the material 
withheld.' Id," 



47 



c) Analysis 

In light of the fact that the State hid exculpatory evidence relating to the plea 
agreement with its chief prosecution witness, the motion should have been granted. Se e 
Taliaferro. 295 Md. at 390-91, 456 A.2d at 37; University of Maryland Medical Systems 
Corp. WL at 11, 

6. The trial court committed reversible error in precluding Appellant from calling Ms. Julian 
as a witness. 

a) Facts 

The trial court erroneously ruled that Appellant could not present testimony from Ms. 
Julian, a member of the Office of the Public Defender, who would have testified that the 
actions of the State in the present case in procuring a free private attorney for a witness was 
so rare that she had never even heard of it before. (2/23/00-239, 246, App. 15, 19) 

b) The Law 

In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held 
that the trial court committed reversible error in limiting the defendant's cross examination 
of a witness as to terms of his plea agreement with the State, and that the defendant was 
entitled to present evidence of terms of a plea agreement, which is relevant to the jury's 
determination of the witness' credibility, bias, and motive to testify falsely. In Conyers . the 
Court held that evidence of the complete negotiations and circumstances of the plea 



48 



agreement are material. Slip op. at 41 . 
c) Analysis 

The trial court erred in restricting Appellant's case. Appellant has the right to put all 
of the facts and circumstances surrounding the plea before the jury. Marshall. 346 Md. at 
1 97; Conyers . Slip op. at 41 . The jury never heard how unusual it was for the State to act in 
such a manner. Had the jury heard this testimony, it may well have concluded that Wilds' 
testimony was too coerced by the State to be believed. As such, the trial court committed 
reversible error. 

7. The trial court committed reversible error in denying Appellant's motion to disclose 
documents and information from the State. 

a) Facts 

The trial court erroneously ruled that Appellant was not entitled to obtain documents 
and information from the State regarding communications between Mr. Urick and Wilds' 
attorney Ms. Benaroya. (2/1 1/00-41-47, App. 20-21) That request was erroneously denied 
on the ground that such a disclosure would violate Wilds' right to have privileged 
communications with his attorney. Appellant, however, sought only communications and 
information involving the State. (2/ 1 1 /00-4 1 -42) 

b) The Law 

In E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md, 396, 416, 718 A.2d 



49 



1 129 (1998), .the Court held : "for a communication to be confidential, it is essential that it 
not be intended for disclosure to third persons. ... 'if a client communicates information to 
his attorney with the understanding that the information will be revealed to others, that 
information ... will not enjoy the privilege.' United States v. (Under Seal) . 748 F.2d at 875. 
See also. [Trupp v. Wolff . 24 Md. App. 588, 609, 335 A.2d 178, 184 (1975)](holding that for 
the attorney-client privilege to apply, the subject of communication must be confidential and 
not made in the presence of a third person.)." 
c) Analysis 

This information was not privileged as it involved a third party. Thus, the trial court 
committed reversible error. See E.I, du Pont de Nemours & Co. . 351 Md. at 416. 

8. The trial court committed reversible error in denying Appellant's motion to question Mr. 
Urick out of the presence of the jury, 
a) Facts 

The trial court denied Appellant's request to question Mr. Urick under oath out of the 
presence of the jury as to the fact surrounding the plea agreement, but particularly as to his 
communications with Ms. Benaroya and his efforts to obtain her as an attorney for Wilds. 
(2/1 1/00-23, App. 10) The trial court based its ruling on its finding that the same information 
could be obtained by Appellant questioning Ms. Benaroya and Wilds. Later, however, the 
trial court ruled that Appellant could not call Ms. Benaroya as a witness in front of the jury. 



50 



(2/22/00-74, App. 9) 

b) The Law 

As stated above, in Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court 
of Appeals held that the trial court committed reversible error in limiting the defendant's 
cross examination of a witness as to terms of his plea agreement with the State, and that the 
defendant was entitled to present evidence of terms of a plea agreement, which is relevant 
to the jury's determination of the witness' credibility, bias, and motive to testify falsely. 

c) Analysis 

Given the fact that the prosecution suppressed evidence relating to the plea agreement, 
and admitted it provided a free attorney to its chief witness, Appellant was entitled to 
question Mr. Urick. Since the trial court denied Appellant's request to obtain the information 
from other sources, the ruling regarding Mr. Urick constituted reversible error. See 
Marshall . 346 Md. at 197. 

B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE 
FORM OF A LETTER FROM THE VICTIM TO APPELLANT, 
WHICH IS HIGHLY PREJUDICIAL. 

1. Standard of Review 

The standard of reviewing a trial court's ruling on the admission of evidence is • 
whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422, 

51 



438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was 
harmless beyond a reasonable doubt. IcL 
2. Argument 

At trial, the State introduced a letter from Hae to Appellant, on the back of which 
Appellant and one of his classmates, Aisha Pittman, allegedly exchanged notes during a high 
school class. (State's Exhibit 38, App. 22-23) The letter constituted inadmissible hearsay 
which did not fall under any exception to the hearsay rule. In it, Hae told Appellant of her 
feelings about the break up, and about her perceptions and opinions as to Appellant's feelings 
about the break up. 

.... I'm really getting annoyed that this situation is going the way it is. . . . 
Your life is NOT going to end. You'll move on and I'll move on. But, 
apparently, you don't respect my decision. ... I NEVER wanted to end this 
like this, so hostile and cold. . . . Hate me if you will. But you should 
remember that I could never hate you. 

During trial, the State offered the letter, as Exhibit 38, to be moved into evidence: 

[BY THE STATE]: Your Honor, I would ask that State's Exhibit 38 be moved 
at this time? 

THE COURT: Any objection? 

[BY DEFENSE COUNSEL]: I would object. 

THE COURT: For the record, I note your objection. 

I ask that you indicate a time frame, and, if you are able to do that through this 
witness, the exhibit will be admitted. 

(Witness states letter was written sometime early in November as were 

52 



comments on the back) 

* * * 

THE COURT: Very Well. It'll be admitted over objection. 

[BY THE STATE]: Thank you, Your Honor. Your Honor, I would ask to 
publish this letter to the jurors by was of Ms. Pittman reading first the front 
side and then the back side? 

THE COURT: Any objection? I know you have objection to the ~ 

[BY DEFENSE COUNSEL]: Only to the - 

THE COURT: I understand you have an objection ~ 

[BY DEFENSE COUNSEL]: to the document. 

THE COURT: That's preserved. Do you have any objection to the process of 
her reading it as opposed to passing it along the jurors and having them read 
it? 

[BY DEFENSE COUNSEL]: I do. I'd prefer the jurors read it. 
THE COURT: I'm gonna allow the witnesses to read the exhibit 



(1/28/00-243-45, App. 24-26) 

Maryland Rule 5-801 provides: 

(a) Statement. A "statement" is (1) an oral or written assertion or (2) 
nonverbal conduct of a person, if it is intended by the person as an assertion. 

(b) Declarant. A "declarant" is a person who makes a statement. 

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant 
while testifying at the trial or hearing, offered in evidence to prove the truth of 
the matter asserted. 

Rule 5-802 provides: "Except as otherwise provided by these rules or permitted by applicable 
constitutional provisions or statutes, hearsay is not admissible." The hearsay letter of the 



53 



victim allegedly written over two months before her disappearance does not fall under any 



exception to the hearsay rule. The letter cannot fall under the state of mind exception found 

in Maryland Rule 5-803(b) (3), which provides as follows: 

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of 
the declarant's then existing state of mind, emotion, sensation, or physical 
condition (such as intent, plan, motive, design, mental feeling, pain, and 
bodily health), offered to prove the declarant's then existing condition or 
the declarant's future action, but not including a statement of memory or 
belief to prove the fact remembered or believed unless it relates to the 
execution, revocation, identification, or terms of declarant's will. 



(Emphasis supplied). This exception is inapplicable for several reasons. First, the declarant 

speaks not only of her state of mind, but her opinion of Appellant's state of mind. Even if 

the letter contained only Hae's state of mind, the letter would be inadmissible because Hae's 

state of mind is not relevant to prove any fact at issue. 

"Statements offered, not to prove the truth of the matters asserted therein, but 
as circumstantial evidence that the declarant had ... a particular state of mind, 
when that ... state of mind is relevant, are nonhearsay." McLain, § 801.10 at 
282-83 (citations omitted) (emphasis added). Here, even if the statements were 
not being offered for their truth, but rather as evidence of McDonald's state of 
mind, i.e., fear of appellant, this would not resolve the issue of their 
admissibility because evidence must also be both relevant and not unduly 
prejudicial. 

Banks v. State . 92 Md. App. 422, 434, 608 A.2d 1249 (1992). 

Further, although Appellant's state of mind is relevant, Hae's statements about 
Appellant's state of mind are inadmissible and do not satisfy the exception. The exception 
permits statements by the declarant about the declarant's state of mind, but not statements 



54 



by the declarant about someone other than the declarant's state of mind. See Maryland Rule 
5-803(b)(3). 

The introduction of the letter to Appellant was not harmless beyond a reasonable 
doubt. The letter referred to Hae's opinion that Appellant was cold, hostile and hateful. 
These statements were highly prejudicial, especially where Hae portrayed herself as being 
sympathetic and loving. No juror could rationally and reasonably decide the issues in the 
case without extreme sympathy for the victim and malice toward Appellant after reading that 
letter. As such, it cannot be said that the erroneous introduction of the letter was harmless 
beyond a reasonable doubt. See. Banks . 92 Md. App. at 438. 

C. THE TRIAL COURT ERRED IN PERMITTING THE 
INTRODUCTION OF THE VICTIM'S 62-PAGE DIARY, WHICH 
CONSTITUTED IRRELEVANT HIGHLY PREJUDICIAL HEARSAY. 

1. Standard of Review 

The standard of reviewing a trial court's ruling on the admission of evidence is 
whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422, 
438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was 
harmless beyond a reasonable doubt. Id In determining whether there was plain error, the 
appellate court must decide whether the error was material to the rights of the defendant, 
such that the defendant was deprived of a fair trial. Move v. State . 139 Md. App. 538, 776 
A.2d 120, cert, granted . 366 Md. 274 (2001). 

55 



2. Argument 



At trial, the State introduced the 62-page diary of the victim in its entirety. (State's 
Exhibit 2, 1/28/00-32, App. 27) Although Appellant did not object at that point, Appellant 
objected numerous times when the State asked a witness to read several pages of the diary: 

Q If I may, I'll ask you to read for the jurors the entry under May 14, 1998? 

[BY DEFENSE COUNSEL]: Objection. 

THE COURT: Overruled. 

A I think I'll try the one week recess Deb suggested. I hope forth and went out 
with Iesha [sic], Deb and Sean in Sean's new car. It is so fly with those tinted 

windows I couldn't be with my baby because he had to go to D.C. for his 

religious stuff That's what I need to figure out. Do I dare to pull him away 
from his religion? Ms. Savic [sic] was all up in my face about it. She said stuff 
like well Adnan used to be so religious and strict last year but this year he is 
so loose, like I changed him. Actually, I did and I don't want to pull him away 
from who he is. I think I need time to organize these things but I do not know 
that — but I do know one thing. I love him and he loves me. Nothing will 
change that. I'll try the recess week and see what happens. I'll probably kill 
myself if I lose him but I'll go crazy with things complicating. I wish he'll [sic] 
call back soon- 

jjc jf; sjs 

Q I ask you to read the entry under May 15 th ? 
[BY DEFENSE COUNSEL]: Again objection, 
THE COURT: Overruled. 

A I did it. Me and Adnan are officially on recess week or time out. I don't 
know what's going to happen to us. Although I'm in love with him, I don't 
know about him. He actually suggests that what we have is like, not love. I 
heard the doubt in his voice. Although he couldn't pick up mine, I felt the 



56 



same way. I like him. No, I love him. It's just all the things that stand in the 
middle, his religion and Muslim customs all are in the way. It irks me to know 
that I am against his religion. He called me a devil a few times. I knew he was 
only joking, but it's somewhat true. I hate that. It's like making him choose 
between me and his religion. 

The second thing is the possessiveness. Independence rather. I'm a very 
independent person. I rarely rely on my parents. Although I love him it's not 
like I need him. I know I'll do just fine without him. I need time for myself 
and my friends other than him. How dare he get mad at me for planning to 
hang out with lesha [sic]. 

The third thing is the mind play. I've matured out of my jealosy shit. I don't 
get jealous over trying to get him jealous as a fool - him trying to get me 
jealous is [sic] a fool because I'll definitely lose him ~ me. I prefer a straight 
relationship that doesn't get in people mixed up just because he wanted to play 
mind games. 

The fourth thing is nothing. Because I do love him. It's just all of the shitty 
things that are messing with my mind. I'm just too confused. If I don't take 
the time to set things straight, the whole thing will blow up ... in my head 
making me mad and do something I'll regret forever. That's why I need the 
time out. I just hope I don't lose him because of this. I love him. When I hold 
him, I want it to be forever. I feel secure and comfy with him. I think he 
expected more of a spontaneous combustion. That's not going to happen all 
of the time. Our relationship burns lightly at first and then it eventually calms 
down. We started strong but now we settle in a boring but secure and loving 
relationship. I don't know what he wants. All I want is him to hold on to, to 
cuddle up to, kiss when I feel empty inside. Maybe I'm not supposed to be 
loved but supposed to love and I thought that I had found another keeper and 
maybe I have. Hopefully, we'll go through this and come out much stronger ~ 
with a much stronger foundation. I love him. I can live without him but I love 
him and want him with me. Please Adnan be patient with me, love. 

(2/16/00-304-307, App. 28) In addition, the trial court previously ruled that hearsay of the 
victim is admissible: 

(Out of the presence of the jury) 



57 



THE COURT: I'm gonna allow the State to inquire as to the relationship that 
this witness was aware based on conversations that she had directly with the 
defendant or directly with the victim in a period of time preceding the murder. 



[BY THE STATE]: I'm sorry. Did you say she can't say anything the victim 
told her? THE COURT: She can tell you- she can say what the victim 
said, she can say what the defendant said as to their relationship. But beyond 
that - 

[BY DEFENSE COUNSEL]: At any time prior to her disappearance? 

THE COURT: The period of time on or about, as you've indicated, October, 
November, December in 1998. However, I will not allow anything other than 
what conversations she had with the witness, victim or the defendant. Other 
than that, not a we knew, what we all knew, what we all heard. That will not 
be permitted. . . . 

[BY THE STATE]: Thank you. 

[BY DEFENSE COUNSEL]: We would note an objection. 
THE COURT: All right. 

(1/28/00-136-37, App. ) Further, the issue of the diary was clearly before the court prior to 
trial when the State filed a Motion for Admission of Excerpts of Victim's Diary. (R. 560- 
576,) Thus, the trial court had before it the issue of the diary, and the issue of the 
admissibility of the diary is preserved for appellate review. 

The diary itself is inadmissible hearsay which was highly prejudicial to Appellant. It 
contained opinions of the victim extremely adverse to Appellant, it contained multiple levels 
of hearsay, and inadmissible bad acts of Appellant. The diary is inadmissible hearsay which 
does not fall under any exception to the hearsay rule. Banks v. State . 92 Md. App. 422, 434, 



58 



608 A.2d 1249 (1992). 



In Banks , the trial court admitted the victim's statements that he feared the defendant, 
that he and the defendant had been arguing, and that the defendant had been violent toward 
him. The State contended on appeal that the statements were not hearsay, because they were 
offered to prove the victim's state of mind. The Court of Special Appeals rejected this 
argument, and agreed with the defendant that the statements constituted inadmissible 
hearsay: 

A recurring problem arises in connection with the admissibility of accusatory 
statements made before the act by the victims of homicide. If the statement is 
merely an expression of fear, i.e. "I am afraid of D," no hearsay problem is 
involved since the statement falls within the hearsay exception for statements 
of mental or emotional condition. This does not, however, resolve the question 
of admissibility. Since nothing indicates that the victim's emotional state is in 
issue in the case, the purpose of the offer of the statement must be to suggest 
the additional step of inferring some further fact from the existence of the 
emotional state. The obvious inference from the existence of fear is that some 
conduct of D, probably mistreatment or threats, occurred to cause the fear. The 
possibility of overpersuasion, the prejudicial character of the evidence, and the 
relative weakness and speculative nature of the inference, all argue against 
admissibility as a matter of relevance. Even if one is willing to allow the 
evidence of fear standing alone, however, the fact is that such cases seem to 
occur but rarely. In life, the situation assumes the form either of a statement by 
the victim that D has threatened him, from which fear may be inferred, or 
perhaps more likely a statement of fear because D has threatened him. In either 
event, the cases have generally excluded the evidence. Not only does the 
evidence possess the weaknesses suggested above for expressions of fear 
standing alone, but in addition it seems unlikely that juries can resist using the 
evidence for forbidden purpose in the presence of specific disclosure of 
misconduct of D.. . . 

Here, McDonald's state of mind as a victim was irrelevant to the 
commission of the crime. (It was only appellant's state of mind that was 
relevant.) Further, any probative value of the statements as to the victim's state 



59 



of mind would be outweighed by the extremely prejudicial nature of the 
evidence. Accordingly, the trial court erred in admitting the disputed 
testimony. See Buckeye Powder Co. v. DuPont Powder Co. . 248 U.S. 55, 65, 
39 S.Ct. 38, 40, 63 L.Ed. 123 (1918) (where state of mind testimony is sought 
to be used in an attempt to demonstrate the truth of the underlying facts rather 
than solely to show state of mind, evidence must be excluded); United States 
v. Day . 591 F.2d 861, 881 (D.C.Cir.1979) (testimony of threats made by 
defendant to victim excluded on grounds of "hearsay problems and questions 
of relevancy and prejudice"); United States v. Brown. 490 F.2d 758, 763 n. 10 
(D.C.Cir.1973) (where state of mind testimony is sought to be used in an 
attempt to demonstrate the truth of the underlying facts rather than solely to 
show state of mind, evidence must be excluded); Commonwealth v. DelValle . 
351 Mass. 489, 221 N.E.2d 922, 924 (1966) (testimony of threats made by 
defendant against victim inadmissible to rebut suicidal state of mind where 
introduced in State's case-in-chief and there was no evidence from the defense 
of victim's suicidal tendencies). 

92 Md. App. at 434-36. The Court held that the error warranted reversal even where the 

defendant admitted to police that she killed the victim. 92 Md. App. at 427, 439. 

In the present case, the diary entries reflect in great detail Hae's feelings for Appellant, 
and how she was in love with Appellant, her own fear of being apart from him, and her 
anguish over the feet that dating is against Appellant's religious beliefs. Aside from causing 
the jury to have extremely sympathetic emotions for Hae, her state of mind has nothing 
whatsoever to do with whether or not Appellant killed her. 

The State, in its Motion, argues that Hae's state of mind is relevant "because an 
understanding of the defendant and victim's relationship is vital to a showing of motive, 
malice and premeditation." (R. 562) The State further argues that because the diary refers 
to the religious beliefs of Appellant and that Hae believed the relationship with Appellant 
would end because of these beliefs the diary is relevant and admissible. Id 



60 



The State's argument is flawed. First, the fact that Appellant and Hae broke up 
because of religious difficulties was not contested at trial. Second, the fact that Hae had been 
' seeing another young man before her death was not contested at trial. Whether Appellant 
became enraged by these circumstances, as the State argues, and killed Hae was the issue to 
be determined by the jury. Hae's mental state has nothing to do with Appellant's mental 
state. Hae's feelings about the religious difficulties caused by their dating and Hae's 
feelings about the breakup are not relevant, and in fact are highly prejudicial. As the Court 
in Banks stated, "McDonald's state of mind as a victim was irrelevant to the commission of 
the crime. (It was only appellant's state of mind that was relevant.)." 92 Md. App. at 435. 18 

In its Motion, the State argues that the diary is admissible as a then existing mental, 
emotional or physical condition pursuant to Maryland Rule 5-803(b)(3)(l). It also contends 
that the victim's state of mind is relevant and admissible. Both of these contentions are 
erroneous. 

Maryland Rule 5-803 (b) provides an exception to the hearsay rule for statements 



^Distinguish Case v. State , 1 18 Md. App. 279, 284, 702 A.2d 777, 779 (1997): "In 
this case, the victim's state of mind was of significant consequence to the issue of whether 
she had invited appellant into her home and had voluntarily positioned herself close 
enough to him that she would become the victim of an accidental shooting. To determine 
whether the victim's death was a homicide or an accident, the jurors were entitled to 
know that, after appellant moved out of the victim's residence, she expressed her fear of 
him, changed the locks, installed motion sensor lights, and made adjustments to the 
windows so they could not be opened. Maryland Rule 5-401." 



61 



"offered to prove the declarant's then existing condition or the declarant's future action. . . 
." As stated above, the victim's state of mind is not relevant in this case. Moreover, the diary 
was not admitted to prove Hae's state of mind, but rather to inflame the passions of the jury 
with passages such as: "I'll probably kill myself if I lose him. . . ." As such, the diary 
constitutes rank inadmissible hearsay. 

The error was not harmless beyond a reasonable doubt. The diary contains highly 
prejudicial hearsay about Hae's feelings, her love of her family, what other people said to her 
about her relationship with Appellant, and a plethora of other inflammatory material. The 
only possible impact this diary could have had on the jury was to cause a great deal of 
sympathy for Hae and engender prejudice against Appellant. Since there was no limiting 
instruction, the jury was invited to use each and every sentence of the 62-page diary as 
substantive evidence. Even where the evidence in a case is "very strong," the appellate court 
must reverse unless it can say beyond a reasonable doubt that the error "in no way" 
influenced the verdict. Richardson v. State 324 Md. 61 1, 624, 598 A.2d 180 (1991). In the 
present case, the entire case against Appellant "hinged" on one witness, Jay Wilds. The 
evidence is far from strong. The diary was overwhelmingly prejudicial to Appellant such that 
its admission denied him a fair trial. Appellant has the right under the due process clause of 
the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights to be tried 
by a jury that is not afflicted with prejudice against him. Further, the introduction of hearsay 
evidence denied him the right to confront and cross-examine witnesses against him. Thus, 



62 



the error in admitting the diary was not harmless beyond a reasonable doubt. 

In the alternative, if this Court finds that all or part of the issue was not preserved, the 
admission of the diary and reading excerpts constitute plain error. The appellate courts have 
"independent discretion" to excuse the failure of a party to preserve an issue for appellate 
review. Moosavi v. State . 355 Md. 651, 661 736 A.2d 285 (1999); Move v. State . 139 Md. 
App. 538, 776 A.2d 120 (2001). Se£ also Maryland Rule 8-131. Appellate courts will 
consider unpreserved errors where the issue is "compelling, extraordinary, exceptional, or 
fundamental to assure the defendant a fair trial." Move v. State . 139 Md. App. 538, 776 A.2d 
120 (2001). As stated above, the introduction of the diary and reading excerpts of the diary 
deprived Appellant of his fundamental rights to a fair trial and to confront and cross-examine 
witnesses against him. As such, Appellant is entitled to a new trial. See Cluster v. Cole. 2 1 
Md. App. 242, 249, 319 A.2d 320, 324 (1974) (recognizing as plain error and reversible 
error the admission of hearsay). 

V. CONCLUSION 

For the foregoing reasons, Appellant requests that the judgments of the court below 
be reversed, and that his convictions be reversed. 19 



19 Pursuant to Maryland Rule 8-504(a)(8), this brief has been printed with 
proportionally spaced type Times New Roman 13 point. 



63 





WARREN A. BRO 
1200 Court Square Building 
200 E. Lexington Street 
Baltimore, Maryland 21202 
(410) 576-3900 






isa J. Sansome,lB&luire 
Law Office of Lisa J. Sansone 
1002 Frederick Road 
Baltimore, Maryland 21228 
(410)719-0221 

Attorneys for Appellant 



CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this jKj day of February, 2002, two copies of the 
foregoing Brief of Appellant were mailed first class, postage pre-paid, to Office of the 
Attorney General, 200 St. Paul Place, Baltimore, Maryland 21202. 



WARREN A. BROWN, P.A. 
1200 Court Square Building 
200 E. Lexington Street 
Baltimore, Maryland 21202 
(410) 576-3900 

Attorney for Appellant 



64 



PERTINENT AUTHORITIES 



U.S. Const. Amend. VI 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by 
an impartial jury of the State and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, and to be informed of the nature 
and cause of the accusation; to be confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his favor, and to have the Assistance of 
Counsel for his defence. 

U.S. Const Amend. XIV 

Section 1 . All persons born or naturalized in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the State wherein they reside. No State shall 
make or enforce any law which shall abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of life, liberty, or property, without due 
process of law; nor deny to any person within its jurisdiction the equal 
protection of the laws. 

Section 2. Representatives shall be apportioned among the several States according to their 
respective numbers, counting the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the choice of electors for President 
and Vice President of the United States, Representatives in Congress, the Executive and 
Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age, and citizens of the United 
States, or in any way abridged, except for participation in rebellion, or other crime, the basis 
of representation therein shall be reduced in the proportion which the number of such male 
citizens shall bear to the whole number Of male citizens twenty-one years of age in such 
State. 

Section 3. No person shall be a Senator or Representative in Congress, or elector of President 
and Vice President, or hold any office, civil or military, under the United States, or under any 
State, who, having previously taken an oath, as a member of Congress, or as an officer of the 
United States, or as a member of any State legislature, or as an executive or judicial officer 
of any State, to support the Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But 
Congress may by a vote of two-thirds of each House, 
remove such disability. 



65 



Section 4. The validity of the public debt of the United States, authorized by law, including 
debts incurred for payment of pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United States nor any State shall assume 
or pay any debt or obligation incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave; but all such debts, obligations 
and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article. 



Article 21, Md. Decl. Rights 

That in all criminal prosecutions, every man hath a right to be informed of 
the accusation against him; to have a copy of the Indictment, or charge, in due 
time (if required) to prepare for his defence; to be allowed counsel; to be 
confronted with the witnesses against him; to have process for his witnesses; 
to examine the witnesses for and against him on oath; and to a speedy trial by 
an impartial jury, without whose unanimous consent he ought not to be found 
guilty. 

Article 24, Md. Decl. Rights. Due process. 

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or 
privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty 
or property, but by the judgment of his peers, or by the Law of the land. 

MARYLAND RULE 4-242. PLEAS 

(a) Permitted Pleas. A defendant may plead not guilty, guilty, or, with the 
consent of the court, nolo contendere. In addition to any of these pleas, the 
defendant may enter a plea of not criminally responsible by reason of insanity. 

(b) Method of Pleading. 

(1) Manner. A defendant may plead not guilty personally or by counsel on the 
record in open court or in writing. A defendant may plead guilty or nolo 
contendere personally on the record in open court, except that a corporate 
defendant may plead guilty or nolo contendere by counsel or a corporate 
officer. A defendant may enter a plea of not criminally responsible by reason 
of insanity personally or by counsel and the plea shall be in writing. 



66 



(2) Time in the District Court. In District Court the defendant shall 
initially plead at or before the time the action is called for trial. 

(3) Time in Circuit Court. In circuit court the defendant shall initially 
plead within 15 days after the earlier of the appearance of counsel or the 
first appearance of the defendant before the circuit court pursuant to Rule 4- 
213 (c). If a motion, demand for particulars, or other paper is filed that 
requires a ruling by the court or compliance by a party before the defendant 
pleads, the time for pleading shall be extended, without special order, to 1 5 
days after the ruling by the court or the compliance by a party. A plea of not 
criminally responsible by reason of insanity shall be entered at the time the 
defendant initially pleads, unless good cause is shown. 

(4) Failure or Refusal to Plead. If the defendant fails or refuses to plead 
as required by this section, the clerk or the court shall enter a plea of not 
guilty. 

(c) Plea of Guilty. The court may accept a plea of guilty only after it 
determines, upon an examination of the defendant on the record in open court 
conducted by the court, the State's Attorney, the attorney for the defendant, 
or any combination thereof, that (1) the defendant is pleading voluntarily, 
with understanding of the nature of the charge and the consequences of the 
plea; and (2) there is a factual basis for the plea. In addition, before 
accepting the plea, the court shall comply with section (e) of this Rule. The 
court may accept the plea of guilty even though the defendant does not admit 
guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of 
not guilty. 

(d) Plea of Nolo Contendere. A defendant may plead nolo contendere only with 
the consent of court. The court may require the defendant or counsel to provide 
information it deems necessary to enable it to determine whether or not it will 
consent. The court may accept the plea only after it determines, upon an * 
examination of the defendant on the record in open court conducted by the 
court, the State's Attorney, the attorney for the defendant, or any combination 
thereof, that the defendant is pleading voluntarily with understanding of the 
nature of the charge and the consequences of the plea. In addition, before 
accepting the plea, the court shall comply with section (e) of this Rule. 
Following the acceptance of a plea of nolo contendere, the court shall proceed 

to disposition as on a plea of guilty, but without finding a verdict of guilty. 
If the court refuses to accept a plea of nolo contendere, it shall call upon 
the defendant to plead anew. 

(e) Collateral Consequences of a Plea of Guilty or Nolo Contendere. Before 
the court accepts a plea of guilty or nolo contendere, the court, the State's 
Attorney, the attorney for the defendant, or any combination thereof shall 



67 



advise the defendant (1) that by entering the plea, if the defendant is not a 
United States citizen, the defendant may face additional consequences of 
deportation, detention, or ineligibility for citizenship and (2) that the 
defendant should consult with defense counsel if the defendant is represented 
and needs additional information concerning the potential consequences of the 
plea. The omission of advice concerning the collateral consequences of a plea 
does not itself mandate that the plea be declared invalid. 

(f) Plea to a Degree. A defendant may plead not guilty to one degree and 
plead guilty to another degree of an offense which, by law, may be divided into 
degrees. 

(g) Withdrawal of Plea. At any time before sentencing, the court may permit 

a defendant to withdraw a plea of guilty or nolo contendere when the withdrawal 
serves the interest of justice. After the imposition of sentence, on motion of 
a defendant filed within ten days, the court may set aside the judgment and 
permit the defendant to withdraw a plea of guilty or nolo contendere if the 
defendant establishes that the provisions of section (c) or (d) of this Rule 
were not complied with or there was a violation of a plea agreement entered 
into pursuant to Rule 4-243. The court shall hold a hearing on any timely 
motion to withdraw a plea of guilty or nolo contendere. 



MARYLAND RULE 5-801. DEFINITIONS 

The following definitions apply under this Chapter: 

(a) Statement. A "statement" is (1) an oral or written assertion or (2) 
nonverbal conduct of a person, if it is intended by the person as an assertion. 

(b) Declarant. A "declarant" is a person who makes a statement. 

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant 
while testifying at the trial or hearing, offered in evidence to prove the 
truth of the matter asserted. 

MARYLAND RULE 5-802. HEARSAY RULE 

Except as otherwise provided by these rules or permitted by applicable 
constitutional provisions or statutes, hearsay is not admissible. 

MARYLAND RULE 5-803. HEARSAY EXCEPTIONS: UNAVAILABILITY OF 
DECLARANT NOT REQUIRED 

The following are not excluded by the hearsay rule, even though the declarant 



68 



is available as a witness: 

(a) Statement by Party-Opponent. A statement that is offered against a party 
and is: 

(1) The party's own statement, in either an individual or representative 
capacity; 

(2) A statement of which the party has manifested an adoption or belief in 
its truth; 

(3) A statement by a person authorized by the party to make a statement 
concerning the subject; 

(4) A statement by the party's agent or employee made during the agency or 
employment relationship concerning a matter within the scope of the agency or 
employment; or 

(5) A statement by a coconspirator of the party during the course and in 
furtherance of the conspiracy. 

(b) Other Exceptions. 

(1) Present Sense Impression. A statement describing or explaining an event 
or condition made while the declarant was perceiving the event or condition, or 
immediately thereafter. 

(2) Excited Utterance. A statement relating to a startling event or 
condition made while the declarant was under the stress of excitement caused by 
the event or condition. 

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of 
the declarant's then existing state of mind, emotion, sensation, or physical 
condition (such as intent, plan, motive, design, mental feeling, pain, and 
bodily health), offered to prove the declarant's then existing condition or the 
declarant's future action, but not including a statement of memory or belief to 
prove the fact remembered or believed unless it relates to the execution, 
revocation, identification, or terms of declarant's will. 

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements 
made for purposes of medical treatment or medical diagnosis in contemplation of 
treatment and describing medical history, or past or present symptoms, pain, or 
sensation, or the inception or general character of the cause or external 
sources thereof insofar as reasonably pertinent to treatment or diagnosis in 
contemplation of treatment. 

(5) Recorded Recollection. See Rule 5-802. 1(e) for recorded recollection. 

(6) Records of Regularly Conducted Business Activity. A memorandum, report, 
record, or data compilation of acts, events, conditions, opinions, or diagnoses 

if (A) it was made at or near the time of the act, event ? or condition, or the 
rendition of the diagnosis, (B) it was made by a person with knowledge or from 
information transmitted by a person with knowledge, (C) it was made and kept in 



69 



the course of a regularly conducted business activity, and (D) the regular 
practice of that business was to make and keep the memorandum, report, record, 
or data compilation. A record of this kind may be excluded if the source of 
information or the method or circumstances of the preparation of the record 
indicate that the information in the record lacks trustworthiness. In this 
paragraph, "business" includes business, institution, association, profession, 
occupation, and calling of every kind, whether or not conducted for profit. 

(7) Absence of Entry in Records Kept in Accordance with Subsection (b)(6). 
Unless the circumstances indicate a lack of trustworthiness, evidence that a 
diligent search disclosed that a matter is not included in the memoranda, 
reports, records, or data compilations kept in accordance with subsection 
(b)(6), when offered to prove the nonoccurrence or nonexistence of the matter, 
if the matter was of a kind about which a memorandum, report, record, or data 
compilation was regularly made and preserved. 

(8) Public Records and Reports. 

(A) Except as otherwise provided in this paragraph, a memorandum, report, 
record, statement, or data compilation made by a public agency setting forth 

(i) the activities of the agency; 

(ii) matters observed pursuant to a duty imposed by law, as to which 
matters there was a duty to report; or 

(iii) in civil actions and when offered against the State in criminal 
actions, factual findings resulting from an investigation made pursuant to 
authority granted by law. 

(B) A record offered pursuant to paragraph (A) may be excluded if the 
source of information or the method or circumstance of the preparation of the 
record indicate that the record or the information in the record lacks 
trustworthiness. 

(C) A record of matters observed by a law enforcement person is not 
admissible under this paragraph when offered against an accused in a criminal 
action. 

(D) This paragraph does not supersede specific statutory provisions 
regarding the admissibility of particular public records. 

(9) Records of Vital Statistics. Except as otherwise provided by statute, 
records or data compilations of births, fetal deaths, deaths, or marriages, if 
the report thereof was made to a public office pursuant to requirements of law. 

(inadmissibility of certain information when paternity is contested) and § 5- 

3 1 1 (admissibility of medical examiner's reports). 

(10) Absence of Public Record or Entry. Unless the circumstances indicate a 
lack of trustworthiness, evidence in the form of testimony or a certification 

in accordance with Rule 5-902 that a diligent search has failed to disclose a 



70 



record, report, statement, or data compilation made by a public agency, or an 
entry therein, when offered to prove the absence of such a record or entry or 
the nonoccurrence or nonexistence of a matter about which a record was 
regularly made and preserved by the public agency. 

(11) Records of Religious Organizations. Statements of births, marriages, 
divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or 
other similar facts of personal or family history, contained in a regularly 
kept record of a religious organization. 

(12) Marriage, Baptismal, and Similar Certificates. Statements of fact 
contained in a certificate that the maker performed a marriage or other 
ceremony or administered a sacrament, made by a member of the clergy, public 
official, or other person authorized by the rules or practices of a religious 
organization or by law to perform the act certified, and purporting to have 
been issued at the time of the act or within a reasonable time thereafter. 

(13) Family Records. Statements of fact concerning personal or family 
history contained in family Bibles, genealogies, charts, engravings on rings, 
inscriptions on family portraits, engravings on urns, crypts, or tombstones or 
the like. 

(14) Records of Documents Affecting an Interest in Property. The record of a 
document purporting to establish or affect an interest in property, as proof of 
the content of the original recorded document and its execution and delivery by 
each person by whom it purports to have been executed, if the record is a 
record of a public office and a statute authorizes, the recording of documents 
of that kind in that office. 

(15) Statements in Documents Affecting an Interest in Property. A statement 
contained in a document purporting to establish or affect an interest in 
property if the matter stated was relevant to the purpose of the document, 
unless dealings with the property since the document was made have been 
inconsistent with the truth of the statement or the purport of the document or 
the circumstances otherwise indicate lack of trustworthiness. 

(16) Statements in Ancient Documents. Statements in a document in existence 
twenty years or more, the authenticity of which is established, unless the 
circumstances indicate lack of trustworthiness. 

(17) Market Reports and Published Compilations. Market quotations, 
tabulations, lists, directories, and other published compilations, generally 
used and reasonably relied upon by the public or by persons in particular 
occupations. 

(18) Learned Treatises. To the extent called to the attention of an expert 
witness upon cross-examination or relied upon by the expert witness in direct 
examination, statements contained in a published treatise, periodical, or 



71 



pamphlet on a subject of history, medicine, or other science or art, 
established as a reliable authority by the testimony or admission of the 
witness, by other expert testimony, or by judicial notice. If admitted, the 
statements may be read into evidence but may not be received as exhibits. 

(19) Reputation Concerning Personal or Family History. Reputation, prior to 
the controversy before the court, among members of a person's family by blood, 
adoption, or marriage, or among a person's associates, or in the community, 
concerning a person's birth, adoption, marriage, divorce, death, or other 
similar feet of personal or family history. 

(20) Reputation Concerning Boundaries or General History. 

(A) Reputation in a community, prior to the controversy before the court, 
as to boundaries of, interests in, or customs affecting lands in the 
community. 

(B) Reputation as to events of general history important to the community, 
state, or nation where the historical events occurred. 

(21) Reputation as to Character. Reputation of a person's character among 
associates or in the community. 

(22) [Vacant]. There is no subsection 22. 

(23) Judgment as to Personal, Family, or General History, or Boundaries. 
Judgments as proof of matters of personal, family, or general history, or 
boundaries, essential to the judgment, if the matter would be provable by 
evidence of reputation under subsections (19) or (20). 

(24) Other Exceptions. Under exceptional circumstances, the following are 
not excluded by the hearsay rule, even though the declarant is available as a 
witness : A statement not specifically covered by any of the foregoing 
exceptions but having equivalent circumstantial guarantees of trustworthiness, 
if the court determines that (A) the statement is offered as evidence of a 
material fact; (B) the statement is more probative on the point for which it 

is offered than any other evidence which the proponent can procure through 
reasonable efforts; and (C) the general purposes of these rules and the 
interests of justice will best be served by admission of the statement into 
evidence. A statement may not be admitted under this exception unless the 
proponent of it makes known to the adverse party, sufficiently in advance of 
the trial or hearing to provide the adverse party with a fair opportunity to 
prepare to meet it, the intention to offer the statement and the particulars of 
it, including the name and address of the declarant. 

MARYLAND RULE 8-131. SCOPE OF REVIEW 

(a) Generally. The issues of jurisdiction of the trial court over the 



72 



subject matter and, unless waived under Rule 2-322, over a person may be raised 
in and decided by the appellate court whether or not raised in and decided by 
the trial court. Ordinarily, the appellate court will not decide any other 
issue unless it plainly appears by the record to have been raised in or decided 
by the trial court, but the Court may decide such an issue if necessary or 
desirable to guide the trial court or to avoid the expense and delay of another 
appeal. 

(b) In Court of Appeals-Additional Limitations. 

(1) Prior Appellate Decision. Unless otherwise provided by the order 
granting the writ of certiorari, in reviewing a decision rendered by the Court 
of Special Appeals or by a circuit court acting in an appellate capacity, the 
Court of Appeals ordinarily will consider only an issue that has been raised in 
the petition for certiorari or any cross-petition and that has been preserved 

for review by the Court of Appeals. Whenever an issue raised in a petition for 
certiorari or a cross-petition involves, either expressly or implicitly, the 
assertion that the trial court committed error, the Court of Appeals may 
consider whether the error was harmless or non-prejudicial even though the 
matter of harm or prejudice was not raised in the petition or in a cross- 
petition. 

(2) No Prior Appellate Decision. Except as otherwise provided in Rule 8- 
304(c), when the Court of Appeals issues a writ of certiorari to review a case 
pending in the Court of Special Appeals before a decision has been rendered by 
that Court, the Court of Appeals will consider those issues that would have 
been cognizable by the Court of Special Appeals. 

(c) Action Tried Without a Jury. When an action has been tried without a 
jury, the appellate court will review the case on both the law and the 
evidence. It will not set aside the judgment of the trial court on the 
evidence unless clearly erroneous, and will give due regard to the opportunity 
of the trial court to judge the credibility of the witnesses. . 

(d) Interlocutory Order. On an appeal from a final judgment, an 
interlocutory order previously entered in the action is open to review by the 
Court unless an appeal has previously been taken from that order and decided on 
the merits by the Court. 

(e) Order Denying Motion to Dismiss. An order denying a motion to dismiss 
for failure to state a claim upon which relief can be granted is reviewable 
only on appeal from the judgment. 



MARYLAND RULE 8-504. CONTENTS OF BRIEF 



73 



(a) Contents. A brief shall comply with the requirements of Rule $- 1 12 and 
include the following items in the order listed: 

(1) A table of contents and a table of citations of cases, constitutional 
provisions, statutes, ordinances, rules, and regulations, with cases 
alphabetically arranged. When a reported Maryland case is cited, the citation 
shall include a reference to- the official Report. 

(2) A brief statement of the case, indicating the nature of the case, the 
course of the proceedings, and the disposition in the lower court, except that 
the appellee's brief shall not contain a statement of the case unless the 
appellee disagrees with the statement in the appellant's brief. 

(3) A statement of the questions presented, separately numbered, indicating 
the legal propositions involved and the questions of fact at issue expressed in 
the terms and circumstances of the case without unnecessary detail. 

(4) A clear concise statement of the facts material to a determination of the 
questions presented, except that the appellee's brief shall contain a statement 
of only those additional facts necessary to correct or amplify the statement in 
the appellant's brief. Reference shall be made to the pages of the record 
extract supporting the assertions. If pursuant to these rules or by leave of 
court a record extract is not filed, reference shall be made to the pages of 
the record or to the transcript of testimony as contained in the record . 

(5) Argument in support of the party's position. 

(6) A short conclusion stating the precise relief sought. 

(7) The citation and verbatim text of all pertinent constitutional 
provisions, statutes, ordinances, rules, and regulations except that the 
appellee's brief shall contain only those not included in the appellant's 
brief. 

(8) If the brief is prepared with proportionally spaced type, the font used 
and the type size in points shall be stated on the last page. 

(b) Appendix. The appellant shall reproduce, as an appendix to the brief, 
the pertinent part of every ruling, opinion, or jury instruction of each lower 
court that deals with points raised by the appellant on appeal. If the appellee 
believes that the part reproduced by the appellant is inadequate, the appellee 
shall reproduce, as an appendix to the appellee's brief, any additional part of 
the instructions or opinion believed necessary by the appellee. 

(c) Effect of Noncompliance. For noncompliance with this Rule, the appellate 
court may dismiss the appeal or make any other appropriate order with respect 
to the case, including an order that an improperly prepared brief be reproduced 
at the expense of the attorney for the party for whom the brief was filed. 



74 



APPENDIX 



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/- 



STATE OF MARYLAND V. Jay Wilds 




CASE NUMBER: CC#998B05801 



AGREEMENT 



This Agreement contains the terms and conditions that have 
been reached between the Office of the S bate's Attorney for 
Baltimore City, referred to in this Agreement as the "State," and 
the Defendant in the above-captioned case, referred to in this 
Agreement as the "Defendant." 

The terms of this Agreement are as follows: 

1. The Defendant agrees to cooperate with the State on the 
following terms and conditions: 

a. The Defendant represents that he/she has fully and 
truthfully responded to all questions put to Defendant by law 
enforcement authorities during all prior interviews. If at any 
point it becomes evident the Defendant has not been truthful 
concerning his involvement in this incident, the State is 
immediately released from any obligation under this agreement, the 
agreement becomes null and void, and the State is free to bring 
any charge against the Defendant supported by the evidence. The 
Defendant shall continue to cooperate fully with the State by 
providing full, complete and candid information concerning the 
murder of Hae Min Lee of which Defendant has knowledge. 

b. The Defendant shall cooperate completely with the State 
and any other Law Enforcement Authorities designated by the State, 
including Federal Authorities in any matter as to which 
Defendant's cooperation may be relevant. Defendant shall comply 
with any and all reasonable instructions from such authorities 
with respect to the specific assistance that Defendant shall 
provide . 

c. The Defendant shall testify fully and truthfully before a 
State or Federal Grand Jury and at all trials or other proceedings 
in which Defendant's testimony may be relevant. 

d. The Defendant agrees to make himself available as needed 
for any court hearings and or trials where his testimony is 
needed. He shall be responsible for seeing the State has the 
means to contact him. Further, the State will request a warrant 
for the Defendant's arrest if he is in violation of this 
paragraph. 



1 



■ / 




1 



3. Nothing in this Agreement shall be construed to protect 
the Defendant from prosecution for perjury, false statement, 
obstruction of justice or any other crime. This Agreement does 
not protect Defendant in any way from any prosecution for offenses 
which occur after the execution of this Agreement or for any 
crimes that may have occurred prior to this Agreement and are not 
a part of this Agreement as enumerated above. 

4. If the Defendant compromises these investigations 
intentionally or through gross negligence, if Defendant is not 
completely candid and truthfully in the performance of this 
Agreement, if Defendant flees, attempts to flee, or fails to 
appear for Defendant's sentencing, the State and the Court will be 
completely released from any obligations under this Agreement and 
the State may recommend and the Court may impose the maximum 
penalties for each and every offense to' which the Defendant has 
tendered a guilty plea pursuant to this Agreement. This includes 
the State's invocation of the minimum mandatory years. 

5 . The Defendant shall not be permitted to withdraw a guilty 
plea tendered pursuant to this Agreement under any circumstances » 

6. The Defendant understands that this Agreement is as it 
appears and that it is a very harsh Agreement. The State makes no 
representation that this Agreement will be easy for the Defendant 
to complete. 

7 . The Defendant agrees not to ever disclose the terms of 
this Agreement or the existence of this Agreement to anyone except 
the Defendant's attorney if the Defendant has acquired legal 
counsel. In addition, the Defendant agrees not to disclose the 
names or other identify of any law enforcement authorities who are 
a party to or otherwise involved in the performance of this 
Agreement. 

8. The State reserves the right to require the Defendant to 
perform specific acts in regard to the investigation and targeting 
or specific individuals or organizations. The State may require 
the Defendant to sign an Addendum to this Agreement that 
identifies those specific acts. 

9. There are no other agreements, promises or understandings 
between the Defendant and the State. This Agreement can only be 
amended in a writing signed by all the parties. 

10. The Defendant expressly waives any right to a preliminary 
hearing or indictment by a Grand Jury. 




App. 2 



h. The Defendant will tender a guilty plea to: 



One count of Accessory After the Fact to 
the Murder of Hae Min Lee v 

and the Defendant expresses that Defendant fully understands the 
maximum penalties and fines for each and every charge as stated. 

2. In consideration for the complete fulfillment by the 
Defendant of each any every term and condition of this Agreement, 
the State agrees to do the following: 

a. At the time the Defendant executes this Agreement and 
tenders a guilty pleas as stated above, the State will recommend 
to the Court that disposition be set at a future date, 
specifically: at a date after all trials where defendant's 
testimony will be needed. 

b. When the Defendant appears before the Court for 
sentencing for the offense(s) to which Defendant has pled guilty, 
the State will bring to the court's attention and the Court will 
consider: 

i. the nature and extent of Defendant's cooperation; 

ii . all other relevant information regarding the 
Defendant's background, character-, and conduct, including the 
conduct that is subject of the various counts of the above- 
captioned indictments ( s ) ; 

iii. any failure by Defendant to fulfill any or all of 
Defendant's obligations pursuant to this Agreement. 

c. At Defendant's sentencing, the State will make a 
recommendation regarding the sentence Defendant shall receive 
based upon the extent of Defendant's cooperation pursuant to this 
Agreement. If the Defendant completes all of the terms and 
conditions stated in this Agreement to the satisfaction of the 
State, the State will recommend a sentence as follows: Five years 
to the Department of Correction with all but two years suspended, 
with three years supervised probation, said recommendation to 
serve as a cap. 

d. If the Defendant fails to complete each and every 
obligation under this Agreement, the State will recommend a 
sentence as follows : Five years to the Department of Corrections . 

e. Whether or not the Defendant has completely fulfilled fell 
of the obligations stated in this Agreement shall be determined by 
the Court at the time of Defendant's sentencing. 



2 ; ^ 

I) 1. 1 



^2Ln^ (fa* 9 hh? ' 

Assistant State's Attorney for ' 7 Date 

Baltimore City 
Narcotics Unit 

I have read this Agreement carefully and reviewed every part 
of it with my attorney. If I do not have an attorney, I expressly 
state that I understand this Agreement and enter into this 
Agreement freely and voluntarily without any duress or coercion by 
anyone whatsoever. 




Defendant/ ^ ' ~ Date 

I am the attorney for the Defendant. I have carefully 
reviewed very part of this Agreement with the Defendant. To my 
knowledge the Defendant's decision to enter into this Agreement is 
an informed and voluntary one. 




.. , , jjd^A£^=^ , _ z_ 

Attorney for the Defendanj/ '. Date 




4 



App. 4 



1 A Because he could harm her. -■ 

2 (Brief pause . ) 

3 (State's Exhibit No. 3 5 

4 was marked for purposes 

5 of identification.) 

6 MR. URICK: If I may approach the witness at 

7 this time, I'm going to show him what has been marked for 

8 identification as State's Exhibit 35. 

9 THE COURT: Yes, you may. 

10 BY MR. URICK: 

11 Q Take a few moments and look at that, if you 

12 would, please, and examine each page. 

13 A Okay . 

14 THE COURT: One moment. 

15 (Brief pause.) 

16 THE COURT : You may continue . 

17 BY MR. URICK: 

18 Q Have you had a chance to examine the exhibit? 

19 A Yes. 

20 Q Can you identify that exhibit? 

21 A Yes. 

22 Q What is that exhibit? 

23 A It's the agreement I signed. 

24 Q And that's the plea agreement you entered into 

25 when you pled guilty to accessory in this murder? 



162 



1 A Yes . 

2 Q And what is your understanding of how your 

3 honesty affects this agreement? 

4 A Well, if I tell any kind of lie, it voids it 

5 and it's no good. It's a truth agreement, and that's 

6 about it, a cap. As long as I tell the truth, I can only 

7 get a certain amount of years . 

a MR. URICK: I would offer, as State's Exhibit 

9 35, the witness' plea agreement. 

10 THE COURT: Any objection? 

11 MS. GUTIERREZ: No. 

12 THE COURT: Let it he admitted. 

13 (State's Exhibit No. 35, 

14 previously marked f oi- 
ls identification, was 

16 received in evidence , ) 

17 MR. URICK: May I have the court's indulgence 

18 for just a moment? 

19 THE COURT: Yes, you may. 

20 (Brief pause.) 

21 BY MR. URICK: 

22 Q If you would, please, look at that exhibit 

23 again. Do you see line seventeen? 

24 A Yes. 

25 Q Do you recognize that number? 



1S3 



1 presume. That's not even what I'm interested, in. He 

2 acknowledges that at the hearing that he asked 

3 Judge McCurdy, and he may have a -- took place because of 

4 his request, but on the table was the ability of Jay Wilds 

5 to withdraw the plea. 

6 When I spoke to Judge McCurdy in the presence of 

7 Ms. Murphy, he doesn't recall such a hearing and doesn't 

8 believe it would have occurred, believes he would have 

9 remembered if it had occurred. And if there had been 

10 anything, it would have occurred before the plea, you know, 

11 on the issue of counsel. But there's no other 

12 recollection. Judge McCurdy' s office staff has already 

13 reviewed all his records, and I tell you, as an officer of 

14 the Court, that there is no record entry in the calendar, 

15 in any papers of Judge McCurdy' s -- papers. And of course, 

16 as the Court's already aware, the court file reflects no 

17 such proceeding, either on or off the record -- the court 

18 file was handled by Judge McCurdy at any juncture following 

19 the September 7. 

20 Mr. Bennett-Royo would have said, but -- couldn't 

21 go any further and cut off the questioning of her, that -- 

22 she may -- with Mr. Urick on the 7th, in the presence of 

23 her client, and that she made sure client understood that 

24 one of the benefits that's not reflected in the typewritten 

25 plea agreement and would not be reflected on the record was 



63 



1 an agreement that would allow Mr. Wilds to withdraw his. 

2 plea at a time later than the 7th, and she would have 

3 testified that's what she told me in the presence of my law 

4 clerk, that her concern and insistence on that being a 

5 benefit of the bargain was because she felt that there -- 

6 that this guy, meaning Mr. Syed, might feel that, in fact, 

7 she was just brought in to represent Mr. -- interests and 

8 that since it was so unusual that his lawyer be provided by 

9 the prosecutor that he had the absolute right, after 

10 reflection, to withdraw the plea. 

11 As to that issue, and that's the first issue, I 

12 believe we're absolutely entitled to get in all the 

13 benefits of the bargain that were extended to Mr. Wilds, 

14 whether or not Mr. Wilds testifies truthfully as to vshaz 

15 they are. 

16 Now, the fact finder has a right to consider all 

17 of the benefits of the bargain in assessing whether or not 

18 the bargains have anything to do with influencing his 

19 testimony or what that bargain is or what extent he may be 

20 beholding to him when he made the bargain, both what's 

21 written and what's not written, and it's up to the jury to 

22 decide whether Mr. Wilds is telling the truth and to decide 

23 as to all things, including what Mr. Wilds' perception is 

24 of the bargain or - - his lawyer says that was part of the 

25 bargain, it was made in front of him, and that goes 



64 



A pp. 3 



1 MS. GUTIERREZ: No, Judge. I have my first 

2 witness -- 

3 THE COURT : The State's reiterating its 

4 position -- 

5 MS. GUTIERREZ : But I would have to make 

6 arrangements to get Mr. Wilds in again. 

7 MR. URICK: We're reiterating our opposition co 

8 any such proceeding taking place in front of the jury. 

9 THE COURT: As I indicated previously, I believe 

10 that calling Ms. Bennett-Royo would not be appropriate and 

11 it would just take us off on a needless presentation of 

12 evidence. And I would find that the credibility of 

13 Mr. Wilds has been exhausted. The ability to cross-examine 

14 him and bring out those things that might have affected his 

15 testimony and his credibility was done, and I believe thai 

16 clearly it was what was in the mind of the Defendant at the 

17 time that he the Defendant meaning Wilds -- entered int- 

18 this agreement, and he testified as to that. He's not a 

19 lawyer, he doesn't know what the Rules of Maryland provide 

20 that even with a guilty plea and even if he signed 

21 something, that a judge could allow him to withdraw his 

22 plea under circumstances where the Court determined it 

23 would be appropriate. Whether he knew that or not, whether 

24 or not that's something that affected his testimony, 

25 clearly did not come out as something that was within his 



74 



Condenselt! 



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Page 21 

1 lawyer. Judge, it's a fraud. Perpetrating that fraud 

2 and trying to clean it up doesn't take it back to the 

3 beginning. 

4 THE COURT: I don't want you to have to 

5 compete with what's going on outside. 

6 MS. GUTIERREZ: Judge, it may well be since 

7 this is the first week of that proceeding and if that 

8 proceeding before Judge McCurdy then it would be 

9 readily available on video and I'll ask the Judge to go 

10 back because I will bet that there may not be anything 

1 1 on that record that Judge McCurdy was made aware enough 

12 co trigger that he even understood that that witness 

13 may not have retained his own lawyer. That the 

14 arrangements for the lawyer came through a prosecutor 

15 for his witness. You can look at that, but whatever it 

16 shows it doesn't alter the fundamental issue that the 

1 7 lawyer was gotten by this lawyer. Whether he satisfied 

18 or not whatever he says, that goes to his credibility, 
)9 that's pan of the argument. 

20 Of course he's satisfied now. he got all the 

21 benefit, he's out to please the man who beholden him 

22 with an actual benefit. Lawyers aren't potted plants, 

23 they cost money. If one is indigent and entitled to a 

24 lawyer there's a way to do it. Prosecutors never get 

25 pick lawyers. It is critical to this case. 



Page 23| 

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1 have that availability. 

2 - Secondly, you have the; availability of calling Ms 

3 Benaroya who I feel would offer you an additional 

4 opportunity to present evidence to attack the 

5 credibility of Mr. Wilds. For that reason I do not 

6 find a compelling reason to call or allow you to call 

7 Mr. Urick as a witness in this case and with that, with 

8 regard to that motion your motion is denied. 1 do 

9 appreciate your argument however, and I will note your 

10 objection and make sure that your motion appears in the 

1 1 record and I'm sure that at the time you may want to 

12 reiterate or reargue this issue at another time, but 1 

13 will also preserve the materials you've provided to me 

14 in the record so the record reflects that, but your 

15 motion is denied. 

16 MS. GUTIERREZ: Thank you. Judge. I do have 

17 a couple other motions in light of that. First of all 

18 -- 

19 THE COURT: Well, before you go into any 

20 other motions let me deal with the motions in front of 

21 me and then you can add to that because 1 would like - 

22 I think you need to know that there are a number of 

23 other things that you've asked for already and I would 

24 like to deal with those first before I take up 

25 something new. Second, I've been provided this morning 



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Page 22 

1 the COURT: Thank you, Ms. Gutierrez. 1 

2 would agree with you that normally prosecutors don't 

3 pick lawyers for Defense Counsel and 1 would also agree 

4 with you that the Court rarely picks attorneys for 

5 Defense Counsel, for Defendants. In fact, the 

6 Defendants absolutely have a right to pick counsel 

7 They have a right to pick substitute counsel, they have 

8 the right to excuse their counsel and say they'll 

9 represent themselves, but that right remains with them. 
10 

L 1 I find that there must be a compelling reason to 

12 call Mr. Urick as a witness in this case in order thai 

13 you may be afforded the opportunity to challenge the 

14 credibility of Mr. Wilds with regard to any deal or 

15 benefit derived from the Stale through the presentation 

16 I'll call it, of an attorney for Mr. Wilds. I also 

17 find that first you made an argument, a rather 

18 compelling presentation of facts. When I say 

19 compelling 1 mean that you have available to you 

20 through your very argument to this Court those items in 

21 evidence to challenge the credibility of Mr. Wild's 

22 testimony with regard to anything Mr. Urick may have 

23 done to assist. The witness himself, Mr. Wilds 

24 provided you with that evidence and you readily used it 

25 in your argument to this Court. So I find that you 



Pane 24 



1 with notes from both detectives. Detective Ruiz. 

2 MR URICK: Ritz. 

3 THE COURT: Ritz. 

4 MS GUTIERREZ: These are the notes of the 

5 two 

6 hours -- 

7 THE COURT; Yes. oh yes. 

8 MS GUTIERREZ: We expected an affidavit. 

9 THE COURT: Yes. 

10 MS GUTIERREZ: That did not exist. 

1 1 THE COURT: No affidavit, Ms. Gutierrez 

12 because 1 have notes and I have a second set of notes 

13 from, 1 assume they're Detective McGilvary. 

14 MR. URICK: That's correct, Your Honor. 

15 THE COURT: I don't know who is whose, all I 

16 know is that there is two sets of notes that appear to 

17 be in different handwriting. Perhaps Mr. -- 

18 MS. GUTIERREZ: Are they identified as to 

19 which? 

20 THE COURT; No, they 1 ic not. I'm asking 

21 perhaps Counsel - 

22 MR URICK: I believe the yellow is Detcctne 

23 McGilvary's. 

24 THE COURT: McGilvary's is in the yellow 

25 MS GUTIERREZ- And are thev identified a-, to 



Condenselt! 



Page 33 

1 didn't dare object to that question, they didn't object 

2 and it was only in response to that that he answered. 

3 It was pure for fortuity. And in light of having 

4 chosen to hide it and not reveal it to the defense, 

5 Judge that's the things that can be corrected and many 

6 of those things can even be corrected all the way up to 

7 the end of the trial. 

S There may be other relief that we ask Judge, but 

9 there is no correction for this unless this Court is 

10 prepared to allow us to go back and reopen to the jury 

1 1 armed with all the knowledge we should have had about 

12 the only witness that can make or break a case against 

13 Adnan Syed. That's the only remedy that can possibly 

14 make us whole. So, we would move to strike all of his 
.15 testimony. 

16 THE COURT: Very well. I'll hear from the 

17 State. 

18 MR. URICK: Without going into the same 

19 detail I will elaborate my previous response. Ms. 

20 Gutierrez is arguing benefit in a situation that's not 
2! appropriate. Assistance of counsel is a fundamental 

22 right, it is not a benefit. The case law established 

23 that quite clearly. 

24 Secondly, the assistance of counsel is effectuated 

25 through judicial review. I was not present for that 


Page 35 

1 establishes even more, so any role that Mr. Urick had 

2 in obtaining that attorney, that particular attorney 

3 and again, 1 don't know what Ms. Benaroya is going to 

4 say but if you find there's even more evidence that 

5 will add to that -- the issue to the credibility of Mr. 

6 Wilds being related in that way you may argue that 

7 But I do find that is a minor issue to the total j 

8 weight of his credibility, that it is something to be ! 

9 raised, but it goes along with the aspects of the plea 

10 agreement which you went through in detail. Which also 

1 1 may be argued obviously to bring forth to the jury's 

12 attention the manner in which they should weigh heavily 

13 or not weigh heavily the testimony o Mr Wilds, so lor 

14 that reason your motion to strike his testimony is 

15 denied, but you will be given latitude to argue that in 

16 closing and also to the extent it may come up through 

17 any other witnesses. j 

18 MS GUTIERREZ Well Judge, in light of v. hat 

19 the Court said, if the Court recalls the cross 

20 examination on the plea agreement actually took place 
2! on Friday and I would ask and I appreciate the Court's 

22 indication that it's going to give me wide latitude. 

23 But because this was a surprise, a new knowledge in 

24 order to effectively take advantage of that 1 think ue 

25 would have to go back to the plea agreement that 1 


Page 34 

1 but it was my belief that that was on the record. I 

2 don't know, I wasn't there, 1 can't state that for 

3 certain. Judge McCurdy might be able to clarify that, 

4 L can't but it was my impression that that was on the 

5 record. Hence, there is no benefit here, this is a 

6 fundamental right and it was effectuated through 

7 judicial review that found as I previously mentioned we 

8 would oppose Ms. Gutierrez's motion. 

9 THE COURT- Very well. Motion to strike the 

10 testimony of Mr. Wilds is denied. However, I'm going 

11 to allow Counsel in closing argument to argue the 

12 credibility of Mr. Wilds being effected by anything 

13 that Mr. Urick may have done in assisting him in 

14 getting counsel and that is anything that came out 

15 through Mr. Wilds' s testimony of what he believed, not 

16 what may in fact have occurred, but what he believed 

17 happened. Because it's his belief that controls his 

18 credibility, what he testified to, why he testifies in 

19 the way he testifies, why he signed the agreement and 

20 why he testified in this case. 

21 So. to the extent that lie believes that there was 

22 some benefit and that anything Ms. Gutierrez has 

23 indicated so far effects his credibility then you may 

24 argue that in closing. Also to the extent you may 

25 choose to call another witness like Ms. Bcnaroya which 


Page 36 

1 pretty much had fully covered on Friday. That's what 1 

2 covered, but of course, I had none of the information 

3 that I have now in regard to the lawyer issue and how 

4 that came about and so I would certainly be requesting 

5 that that wide latitude include my ability to go back 

6 to areas that clear have already covered but without 

7 this knowledge. 

8 THE COURT' Ms. Gutierrez, I'm going to deny 

9 that request. My notes reflect that yesterday you 

10 spent just over an hour on the plea agreement in 

1 1 addition to -- in addition to the questions on Friday. 

12 MS. GUTIERREZ But that was before I got the 

13 information. 

14 THE COURT. Well, actually I think -- 

15 MS. GUTIERREZ The magic information came at 

16 ten after four. 

17 THE COURT: The magic information actually 

18 came from the witness earlier on. 

19 MS. GUTIERREZ: No. Judge. 

20 Tllb COURT. He, himself said -- 

21 MS GUTIERREZ: Its ten after four -- 

22 THE COURT: All right. 

23 MS GUTIERREZ: in which he sa\s he got Mr 

24 bricks' assistance in obtaining counsel 

25 THE COURT: Ms. Guticncz, 1 hear what vou'tc 



Condcnselt! 



TM 



■ 



Page 153 

j Q You don't recall that? 

2 A No, ma'am. 

3 Q Will reviewing your transcript help refresh your 

4 recollection? 

5 A Yes, ma'am. 

6 Q Well, perhaps we can arrange that. 

7 MR. URICK.: Objection. 

8 BY M.S. GUTIERREZ: 

9 Q So sir, you don't -- 

10 THE COURT: Sustained. Counsel, can we move on? 

1 1 The witness has answered the question. Your next question. 

12 BY MS. GUTIERREZ: 

13 Q Now on the 1 3th of April Mr. Wilds, you were 

14 again brought downtown, right? 

15 MR. WILDS: 

16 A Yes. ma'am. 

17 Q And you were asked about these things by 
!8 Detectives McGilvary and Witts, were you not? 

19 A Yes, ma'am. 

20 Q And they were still concerned about varying 

21 inconsistencies, were they not? 

22 A Some, yes. 

23 Q And they asked you a lot of questions, did they 

24 not? 

25 A Yes, ma'am. 



Page 155! 

1 Q It was not long, but after that, right? 

2 A Yes, ma'am. 

3 " Q Not before then, right'? 

4 A No, ma'am. 

5 Q Now at the lime you signed the plea agreement you 

6 already identified what's in evidence as Stated Exhibit 35. 

7 sir? 

8 A Yes, ma 'am. 

9 Q If you look ai 1 A by signing this plea agreement you 

10 represented that you had fully and truthfully responded to all 

11 questions put to the Defendant by law enforcement authorttie: 

12 during all prior interviews, did you nol? 

13 A Yes, ma'am. 

14 Q And if you look down further in paragraph A in the 

15 second to last line in that paragraph it mentions that you 

16 shall continue to cooperate fully wilh the State by providing 

17 full, complete and candid information, does U not* 1 

18 A Yes, ma'am. 

19 Q And you signed on that, did you not? 

20 A Yes, ma'am. 

21 Q And Mr. LYick signed, did they not'* 

22 A Yes, ma'am 

23 Q And your lawyer signed, did they not ' 

24 A Yes, ma'am 

25 Q Incidentally, at whal point did your lawyer come 



I 
I 



Page 154 

1 Q And you were still free, were you nol? 

2 A Yes, ma'am. 

3 Q And that occasion there was no tape recording, 

4 was there? 

5 A 1 don't believe so. 

6 Q Well once again, they took notes, did they not? 

7 MR. URICK: Objection. 

8 the COURT: Overruled. Did they take notes? 

9 MR. WILDS-. No, ma'am. 

10 BY MS. GUTIERREZ: 

11 Q And once again, you didn't ask for help in getting a 

1 2 lawyer, did you? 

13 MR. WILDS: 

14 A No, ma'am. 

15 Q And you didn't bring a lawyer wilh you? 

16 A No, ma'am. 

17 Q And the next time you spoke to anyone in law 

18 enforcement about these things was in September when you 

19 signed the plea agreement, is that correct? 

20 A Yes, ma'am. 

21 Q And you didn't have concessions with Mr. Urick and 

22 Ms Murphy 'til long after that, right? 

23 A No, it was not long. 

24 Q Pardon. 

25 A It was not long. 



Page 156 

1 about after the 13th of April? 

2 MR.URSCK Objection. 

3 THE COURT Sustained. 

4 BY MS. GUTIERREZ 

5 Q Did anyone help provide you a lawyer'' 

6 MR. URICK: Objection. 

7 THE COURT. Overruled. 

8 MR. WILDS Yes, ma'am. 

9 BY MS. GLTIERREZ 

10 Q Who? 

1 1 MR. WILDS 

12 A Mr. Urick 

13 Q Mr. Urick the prosecutor m this case helped provide 

14 you a lawyer? 

15 A Yes, ma'am. 

16 Q And that was before or after you got notice that you 

17 would be charged by him? 

18 MR. URICK: Objection. 

19 THE COURT Overruled 

20 MR. WILDS- Ucforc, ma'am. 

21 DY MS. GUT1ERRIIZ 

22 Q Did you meet your lawyer bdo:e the Ja\ liui: \ou 

23 signed the agreement that you called t;:c truth agreement'' 

24 MR. WILDS: 

25 A No, ma'am 



Condenselt! 





, V**? Page 157 




Page 159 


1 


Q And did Mr. Urick confront you or speak to you 


1 


the court: Sustained. 


2 before you and he signed it about all the lies that you had 


2 


BY MS. GUTIERREZ: 


3 already told the police? 


3 


Q Did your lawyer, the one provided by Mr. Urick. tlie 


4 


A Me and Mr. Urick had a conversation. 


4 


prosecutor advise you to sign it? 


5 


Q Pardon. 


5 


MR. WILDS 


6 


A Me and Mr. Urick had a conversation. 


6 


A No. 


7 


Q Did he - did that conversation include a discussion 


7 


Q No. Now, you didn't have to pay for your lawyer. 


8 about the lies that you've already admitted that you had told 


8 


did you? 


9 the police? 


' 9 


mr. urick - . Objection. 


10 


A Yes, ma'am. 


10 


THE court: Sustained. 


11 


Q Yes. And were you forgiven for those lies? 


11 


BY MS GUTIERREZ: 


12 


A Forgiven? 


12 


Q When was it that you understood that Mr. Urick would 


13 


Q Forgiven? 


13 


be getting your lawyer? 


14 


A You'll have to ask Mr. Urick that, I don't know. 


14 


mr. URICK: Objection. 


15 


Q Well sir, this is your plea agreement, is it not? 


15 


the court: I'm sorry. When was it that you 


16 


MR. URICK: Objection. 


16 


understood ~ 


17 


j THE COURT: Sustained. 


17 


Ms Gutierrez That Mr. Urick would be getting your 


18 


BY M.S. GUTIERREZ. 


18 


lawyer? 


19 


Q This controls what will happen to you, does it not? 


19 


THE court Sustained. Ladies and gentlemen, as we 


20 


.MR. URICK: Objection 


20 


proceed with the questioning by a show of hands does anyone 


21 


the COURT: Sustained 


21 


need water in the jury box? All right Can we gel some 


22 


BY MS GUTIERREZ: 


22 


assistance? Mr. Deputy Church, would you assist? Thank you 


23 


Q It has no impact on any punishment on Mr Urick, 


23 


Is there neat coming rrom the back, behind you; Ladies and 


24 


does it? 


24 


gentlemen, I don't know what has triggered the heat but we'll 


25 


MR. URICK. Objection , 


25 


try to find out why. Maybe it's starting to drop outside 




Page 158 




Page 160 


I 


THE COURT: Sustained. 


1 


Just indicate and as again I'll ask maintenance to see if they 


-> 


BY MS GUTIERREZ 


2 


can't assist in — if it's not one thing it's another. Deputy 


3 


Q You read it very carefully before signing it, did 


3 


Church, if you could - do you know where Ms Connelly is? 


4 


you not? 


4 


MS Gutierrez- Judge, can we take a short break? 


5 


MR. WILDS: 


5 


THE COURT: We Could. 


6 


A Yes, ma'am. 


6 


Ms Gutierrez. It's about four. 


7 


Q And you discussed it fuliy with the lawyer, the 


7 


THE COURT. We're going to do. ladies and gentlemen. 


8 prosecutor got you, did you not? 


8 


we're going to have Deputy Church just walk you back to the 


9 


A Yes, ma'am. 


9 


jury room across tlie hall, let you stretch your legs and get 


10 


Q And sir, you understood that you were signing and 


10 


some air and I'm going to ask that maintenance come in the 


1 1 


affirming that you hadn't told them any lies, right? 


11 


interim to see if they can adjust tlie radiators so -- they are 


12 


A Pardon me? I had signed it affirming -- 


12 


directly behind you which is why tlie heat is emanating and you 


13 


Q You were signing saying that you understood that 


13 


all are getting tlie heat before we do. But I can tell lhat 


14 


you've been truthful for them, did you not? 


14 


you appear to be uncomfortable particularly in the back row so 


15 


MR. URICK' Objection. 


15 


what we'll do it to try to get tliem in here. I'll make a call 


16 


THE COURT: Sustained. 


16 


and we're going to take a brief recess. 


17 


BY MS. GUTIERREZ. 


17 


During the recess Mr. Wilds. I must ad\ ise you that you 


18 


Q Sir, you read this before you signed it, xlid you 


18 


should not discuss your testimony with anyone, the State or 


19 


not? 


19 


the Defense Your welcome to stay put in the courtroom if 


20 


MR. URICK: Objection. 


20 


you'd like or you are also welcome to stretch your legs but 


21 


BY MS. GUTIERREZ. 


21 


stay put until the jury goes out. Ladies and gentlemen. I'm 


22 


Q And you understood that the truth part of the 


22 


going to ask that you leave your note pads face down You may 


23 agreement wasn't just truth in the future -- 


23 


take your water cups with you li you warn. Do not discus tlie 


24 


MR. URICK: Objection. 


24 


testimony that you've licard today or anything else. It's ru^t 


25 


Q Did you not? 


25 


o brief recess, we're just going to try to get the heat 



Condenselt! 



rage 00 




Page 70 


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23 coiiversation with vour lavwer If vou choose to 




A Yp<; ma'am 


24 waive that privilege, you have an absolute right to 


24 


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25 do that but it is your right not to discuss anything 


25 


to testify about? 


rage 07 




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3 


A Yes, ma'am. 


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t 1 1 1 1_ l.vui\ it 10 iiiui u y « 


4 


Q And that discussion took place inside the 


S THF WITNF^^* Ye*< ma'am 


5 State's Attorney's Office, did it not? 


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6 


A Yes, ma'am. 


7 b/\<i CriitierTP7 


7 


Q And that discussion took how long? 


8 MS GUTIERREZ' Jurlire we would unto :in 


8 


A About an hour. 


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9 


Q And at the end of that hour you signed an 


10 THE COURT- That's auite all rieht 


10 agreement that you called the truth agreement, did 


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1 1 you not? 


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12 


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13 


Q And Mr. Urick signed it? 


14 MS GUTIRRREZ- Thank von Vour Honor 


14 


A Yes, ma'am. 


15 O Now Mr Wilds there came a lime after 


15 


Q And Ms. Benaroya signed it? 


i6 about an hour and half when vou left that room 


16 


A Excuse me, yes, ma'am. 


17 together with this woman that had been introduced to 

4 ' \ V 4^ W 14 lx#4 * * 1 »ll lU ' V 1114411 441 44 I 1 1UU V w 11 1 1 1 L 4 vUUvvU lv 


17 


Q Was that agreement typed up while you were 


18 you by Mr. Urick -- 


18 talking to them in that same room? 


19 MR. URICK: Objection. 


19 


A No, ma'am. 


20 O — correct 1 ' 


20 


Q This agreement that you signed was 


21 THE COURT Overruled 

4-1 L L l4w ' W \-> 1 V 1 . *v_/ VL1 1 U IVUi 


21 presented to you for the first time in that room, was 


22 A Yes, ma'am. 


22 it not? 


23 Q And you went somewhere, did you not? 


23 


A Which room? 


24 A Yes, ma'am. 


24 


Q The State's Attorney's office? 


25 Q And the place where you went was across the 


25 


A Which room? 



I'i'l App. 14 



1 and decided that he wanted. And to have Ms. Julian come in 

2 serves no purpose in the interest of- justice or a 

3 furtherance of this case. And so, for that reason, 

4 Ms. Julian will not be permitted to testify unless she has 

5 some personal knowledge about this case or some relevant 

6 testimony other than what you've already proffered to this 

7 Court . 

8 And I would also note for the record that you are 

9 well within developing your theory, but whatever theory you 

10 develop, I still have the discretion to determine whether 

11 the information is relevant to this proceeding. 

12 MS. GUTIERREZ: I understand, Judge. 

13 THE COURT: And you can disagree and you can note 

14 the record, as you have. 

15 MS. GUTIERREZ: You know that I'll do it. 

16 THE COURT: And so, I respect your argument -- 

17 MS. GUTIERREZ: I would ask for some guidance -- 

18 THE COURT: -- and your right to make your 

19 argument, as I'm sure you respect my right -- 

20 MS. GUTIERREZ: And as the Court knows, I'm -- 

21 THE COURT: -- to disagree. 

22 MS. GUTIERREZ: -- working on a jury 

23 instruction -- 

24 THE COURT: Very well. 

25 MS. GUTIERREZ : --to that and I will 



239 



Condensclt! 





Page 72 


Page 74 


1 


Q Wherever you, Mr. Urick, and Ms. Benaroya 


l A No, ma'am. 


2 were talking. Did you talk in more than one? 


2 Q And did your lawyer? 


3 


A No, ma! am. 


3 -■ MR. URICK: Objection. 


4 


Q Was there anybody else ever involved in the 


4 THE COURT: Sustained as to the question. 


5 


discussion? 


5 If you could put a time did your lawyer make — 


6 


A No, ma'am. 


6 Q In the hour and a half that you were in the 


7 


MR. URICK: Objection. 


7 room together with Mr. Urick and this woman that iiad 


8 


Q Well, in that room - 


8 been introduced to you as a very good lawyer, or 


9 


THE COURT: Overruled. 


9 defense lawyer that did pro bono stuff - 


10 


Q Was that the first time that you were 


10 MR. URICK: Objection, 


1 1 presented with this agreement? 


11 Q -- during that time period -- 


12 


A No, ma'am. 


12 MR. URICK: Objection. 


13 


Q And you had been presented that previously, 


13 THE COURT: Overruled. Did you observe 


14 


had you not? 


14 your attorney in the presence of the others make 


15 


A Yes, ma'am. 


15 changes to that plea agreement? Yes or no. 


16 


Q After you were introduced to Ms. Benaroya, 


16 THE WITNESS: Yes. 


17 correct? 


17 THE COURT: Yes. 


18 


A Yes, ma'am. 


18 Q And were you discussing it with your lawyer 


19 


Q And at the time you were presented it, it 


19 at that time? 


20 was already typed up, was it not? 


20 MR. URICK: Objection. 


21 


MR. URICK: Objection. 


21 THE COURT: Sustained. 


22 


THE COURT: Sustained. 


22 Q Were you discussing it with Mr. Unci;'' 


23 


Q There was no place in the agreement for 


23 A No, ma'am. 


24 fill in the blanks, was there? 


24 Q The changes that you made you said the 


25 


MR. URICK: Objection. 


25 alterations that you made concerned what? 




Page 73 


p_is;e 75 


1 


THE COURT: Sustained. 


I A Minor things, going to court. 


2 


Q When you were in the room with Mr. Urick 


2 Q Pardon? 


3 


and this woman Ms. Benaroya, did any of you make any 


3 A Minor things like how and when I wa> 


4 alterations to the agreement — 


4 supposed to go to court. 


5 


MR. URICK: Objection. 


5 Q When you were supposed to go to court ' 


6 


Q -- that you were presented with? 


6 A How, how. 


7 


THE COURT: Overruled. Any alterations to 


7 Q How, meaning how were you supposed to get 


8 


the agreement that you were presented with? 


8 there? 


9 


THE WITNESS: Yes. 


9 A No, like the terms. 


10 


Q Yes. And did you cross out things? 


10 Q The terms of going to court? 


11 


A Yes. 


11 A Yes. 


12 


Q Put your initials on places? 


12 Q Well, you understood, sir, that the 


13 


A Yes. 


13 agreement requires you to testify at any time they 


14 


Q And did you insist on other terms? 


14 tell you to do so? 


15 


A No, ma'am. 


15 A Yes, ma'am. 


16 


Q And were you asked to read all of the terms 


16 Q And is there — maybe you could help tell 


17 


in your presence? 


17 us what part of that you wanted to change? 


18 


A Yes, ma'am. 


18 MR. URICK: Objection. 


19 


Q And to make sure you understood them? 


19 THE COURT: Sustained. 


20 


A Yes, ma'am. 


20 Q What part of that did you change? 


2t 


Q And were you given an opportunity to ask 


21 MR. URICK: Objection. 


22 questions of your own? 


22 A I believe it was -- 


23 


MR. URICK: Objection. 


23 THE COURT: Just one moment. What pan - 


24 


THE COURT: Sustained as to the question. 


24 I'm going to sustain the question. 


25 


Q Sir, did you make alterations? 


25 Q Mr. Wilds, while you were in that room u ith 



Page * . , 

to App. 16 



Condenselt! 



Page 53 

1 attorneys because for all I know she has other 

2 appropriate business with them. But I think that will 

3 suffice in addressing the concerns of Ms. Gutierrez. 

4 Any other matters before we bring the jury out? 

5 MS. GUTIERREZ: Well Judge, -- 

6 THE COURT: Mr. Urick. 

7 MS. GUTIERREZ: No. not on my list. 1 have 

8 others. Although I would ask before continuing the 

9 cross examination of Mr. Wilds an ability to review 

10 those notes. 

11 THE COURT: Absolutely. Why don't we do 

12 that. In fact, if we can have Mr. Wilds come in 

13 because — 

14 MR. URICK: I have a couple of motions if 

15 Defense Counsel is finished with hers. 

16 THE COURT: Very well. Before Mr. Wilds 

17 comes in. 

18 MS. GUTIERREZ: Finished them until 1 think 

19 there's some new ones. 

20 THE COURT. I will hear from Mr. Urick. 

21 MR. URICK: Your Honor, the first, well 

22 they're both motions in limine. It struck me after the 

23 fact that Ms. Gutierrez was asking questions of Mr. 

24 Wilds about discussions he had with his attorney, 

25 that's privileged information as the Court notes one 

Page 54 

1 time, several times this morning. 

2 I would ask that the Court direct Ms. Gutierrez 

3 not to ask any questions of the witness as to any 

4 discussions he had with his attorney because that is 

5 privileged information and it would be not -- he would 

6 have an absolute privilege to keep that from being 

7 revealed. The second motion in limine is that I would 

8 move that she not be allowed to inquire any further 

9 into his assistance of counsel and in support of that 

10 motion in limine and I provided the Court today with 

1 1 Jeffrey Ebb versus State of Maryland. This is a 

12 discretionary motion and it goes to admissibility of 

13 evidence. Ms. Gutierrez is trying to inject an issue 

14 before the jury that is not a jury question. 

15 THE COURT. Which issue is that? 

16 MR. URICK: His assistance of counsel. She's 

17 trying to claim it as a benefit, it's not, it's a 

18 fundamental right. Because it's a fundamental right -- 

19 THE COURT. Do you understand her argument? 

20 MR. URICK: Yes I do. Your Honor. 

21 THE COURT: And her argument as you sec it 

22 that his right to counsel? 

23 MR. URICK: She is trying to make that a 

24 quantifiable asset like it's a good, it's not. It's a 

25 fundamental rifht. Rpr.;nisf it's fimrhmenfnl ri"ht it 



Page 55 

1 is not a benefit. 

2 THE COURT: He has a right to counsel, 

3 correct? 

4 MR. URICK: Yes. 

5 THE COURT: If someone paid for him to have 

6 an attorney, would that be a benefit? 

7 MR. URICK: I believe that probably would be. 

8 THE COURT. If someone arranged for him to 

9 have an attorney that he might not ordinarily be able 

10 to have, higher obtained. Would that be a benefit? 

1 1 MR. URICK: The State has a duty to provide 

12 him an attorney. 

13 THE COURT I didn't ask you that. ! asked 

14 you whether or not it would be a benefit? 

15 MR. URICK: I believe it would be a 

16 fundamental right, it would not be a benefit. 

17 THE COURT: You work for an employer and the 

18 employer said, oh, by the way if you get in trouble 

19 I'll pay for your lawyer, is that a bcnclit? It's a 

20 benefit. You work for a drug dealer and he says, oh, 

21 by the way if you get in any trouble I have a lawyer. 

22 is that a benefit? It's a benefit, it's a benefit. 

23 Now we don't know whether or not he accepted or 

24 rejected any lawyer that you offered him or anyone on 

25 behalf of the State offered him. He, like anyone has a 

Page 56 

1 right to object. 

2 If you have an insurance company, you're in a car 

3 accident, you can take the lawyer that goes with the 

4 insurance company or you can say, that's okay, I'll get 

5 my own. If you work for a drug dealer and he says I'll 

6 give you a lawyer if you get in trouble, you can always 

7 say, that's okay I don't want him and if the State 

8 offers you an attorney you can always say. that's okay, 

9 I'll get someone else because the right is the 

10 Defendant's right. As you said, but the benefit is 

1 1 still one which counsel could argue existed. Whether a 

12 jury, a finder of fact believes in fact he benefited. 
[3 whether the finder of fact believes that if effect-, iu> 

14 credibility is an argument that Ms. Gutierrez will tunc 

15 and I do find that arguably it could be perceived as a 

16 benefit, could be. 

17 I don't find that the State did anything in error 

18 in not disclosing it because 1 think the State honestly 

19 and with good faith did not perceive it as a benefit. 

20 However, it is now been disclosed to the Defence and 

21 the way in which it happened, the circumstances Jiidcr 

22 which it happened is still kind of foggy and unclear. 

23 but as it is foggy and unclear the Defense is alv. a\s 

24 able to take facts that are foggy and unclear and argue 
•>< in n iur- nrH -n tI : H - f"- r- ti - r - r- n 



Condenselt! 



Page 76 

1 Ms. Benaroya and Mr. Urick, did anybody else come in 

2 and out? 

3 A Yes, ma'am. 

4 Q And who was that? 

5 A Ms. Murphy. 

6 Q Ms. Muiphy. And you understood who she 

7 was, right? 

8 A She introduced herself. 

9 Q Well, you just told us you had heard her 

10 name before? 

11 A Yes, ma'am. 

12 Q And you knew her to be a prosecutor before, 

13 right? 

14 A Yes, ma'am. 

15 Q Right? 

16 A I had never seen her. 

17 Q So although you had not met her you knew 
!S who she was? 

19 A I knew of her. 

20 Q You knew of her. And she came in and out 

21 of that room how many times? 

22 A I do not recall. 

23 Q That session ended at some point? 

24 A Yes, ma'am. 

25 Q And at the conclusion of that session had 



Page 78 

1 going to be charged in regard to any drug case, had 

2 you? 

3 MR. URICK: Objection. 

4 THE COURT: Overruled. 

5 A No, ma'am. 

6 Q The only thing that you were lold is that 

7 you were going to be charged as an accessory after 

8 the fact to murder; is that correct? 

9 A Yes, ma'am. 

10 Q The murder that you had spoken to them 

1 1 about that you say occurred on January 13th, right? 

12 A Yes, ma'am. 

3 Q That was the only thing they lold you. 

14 right? 

15 .A Yes, ma'am. 

16 Q They weren't threatening you with drug 

17 charges at any time, were they? 

18 A No, ma'am. 

19 Q On the 6th, the day before they didn't tell j 

20 you, oh, by the way, you're going to be charged \\ nh ! 

21 an accessory after the fact to the murder about uhich 

22 you discussed and also you're going to get charged in 

23 all of these drug cases? 

24 MR. URICK: Objection. 

25 THE COURT: Sustained. Asked and angered 



Page 77 

1 this been totally negotiated? 

2 A Yes, ma'am. 

3 Q And was it retyped? 

4 A Excuse me, no, ma'am. 

5 Q No. So what you ended up with and what you 

6 signed is the same document that was first presented 

7 to you before you walked to the place where you spoke 

8 with Ms. Benaroya and Mr. Urick? 

9 MR. URICK: Objection. 

10 THE COURT: Overruled. Do you know if it 

1 1 Was the same document? 

12 THE WITNESS: Not exactly. 

13 Q Meaning you don't know exactly or it wasn't 

14 exactly the same document? 

15 A It's not exactly the same document. 

16 Q And so the document that you signed did it 

17 have any alterations that you made in it? 
IS A Yes. 

19 Q And what were those? 

20 A Things involving whether it was a drug case 

21 or not and stuff like that. 

22 Q Well, this wasn't a drug case? 

23 A That's why we made the alterations. 

24 THE COURT: Sustained. 

25 Q And, sir, you hadn't been told you were 



Page 

1 Q Now, sir, if you recall the other day 1 

2 asked you about 1-A. It states that you the 

3 defendant represent that he or she has fully and 

4 truthfully responded to all questions put to you b> 

5 law enforcement during all prior interviews. Jo >oj 

6 recall that? 

7 A Yes, ma'am. 

8 Q And you've acknowledged, sir, that voa 

9 hadn't responded truthfully to all of their 

10 questions, right? 

1 1 A There came a point when all of the 

12 questions were answered truthfully. 

13 Q Pardon? 

14 A There came a point when all of the 

15 questions were answered truthfully. 

16 Q Well, no, sir. My question to you, you \e 

17 already acknowledged that you've lied to them. have 

18 you not? 

19 MR. URICK: Objection. 

20 THE COURT: Sustained. 

21 Q And you were aware when you read this that 

22 you had lied to them -- 

23 MR. URICK Objection. 

24 THE COURT: Sustained. 

25 Q - were you not -- and sir, were you a.skcJ 



Page '. 



Ann. 18 



. kJhju^ {ulsl 1 : ^5 a.m. . "-/faj u^urv/zu/y, ocv^- U Urn 
M ! M Ithtkiwuu/Lcal -fa aU ivkddr U CjML uto di 

iC^uxn fyot 0UAtj (Jzefiz (Jktxt ^wt'Jd dS^i bulh{ 

Ywix} . If N(~[j&f\ lMXX/M k) Qstld -{jlos> dlkl- drtth j Sjj 




Condenselt! 



Page 4 1 

1 the number I should use to contact the clerk's office 

2 let me do that and if it turns out that it's not the 

3 correct number and I've been misled then I'll deal with 

4 that. 

5 MR. URICK: I misspoke, that was the tracking 

6 number. The case number is 299 — 

7 THE COURT: One moment. 299 -- 

8 MR. URICK.-. 250. 

9 THE COURT: 250. 

10 MR. URICK.-. 001. 

1 1 THE COURT: 001 and his name is not an alias, 

12 it is Jay, J-A-Y. 

13 MR. URICK. Yes. 

14 THE COURT. W-I-L-D-S7 

15 MR. URICK: Yes. 

16 THE COURT: Very well. Ms. Connelly, if you 

17 could kindly locate this guilty plea, get me a date, 

18 find out from Ms. Sheldon if the tape is available. 

19 Ms. Gutierrez, your next issue. 

20 MS. GUTIERREZ: Yes Judge, at this time wc 

21 would make a motion before full disclosure pursuant to 

22 the Rules, pursuant to Maryland case law, pursuant to 

23 Federal case law, pursuant to Brady, pursuant to due 

24 process for full disclosure covering any and all 

25 circumstances of exactly what help Mr. Urick provided 

Page 42 

1 in getting a lawyer, how the lawyer was selected or was 

2 any other circumstances surrounding the selection of 

3 that lawyer or the setting that up. What was 

4 communicated from Mr. Urick to Mr. Wilds? Was there 

5 any correspondence between that lawyer and Mr. Urick or 

6 anyone acting as Mr. Urick's agent or from anyone 

7 assisting or acting as Ms. Benaroya's agent? 

8 That correspondence request would include 

9 any phone records, any notes of conversations, whether 

10 or not the information was reduced to a formal piece of 

1 1 correspondence. The substance of any conversations and 

12 now that we're on notice that subsequent to the plea 

13 that there was a further proceeding, what if any -- 

14 what if anything occurred that led to that second 

15 proceeding where this client was asked if he was happy 

16 with the lawyer and satisfied with the lawyer that was 

17 selected by Mr. Urick. 

18 We'd also request information on ail the same 

19 grounds, any information as from Mr, Urick as to 

20 whether or not he's ever picked a lawyer lor the main 

21 suspect in a murder ease outside the formal procedures 

22 available in this jurisdiction to do so whether or not 

23 in this case or any other case. He's made a referral 

24 to the Public Defender's olTice if he ever approached 

25 any judicial entity, what if any arrangements were made 



Page 43 

1 to pay the lawyer or not pay the lawyer through any 

2 means. Direct money", other billing, any means 

3 whatsoever. By any that would be including the State's 

4 Attorney's Office hasn't received any billing from Ms. ■ 

5 Benaroya or correspondence or the submission of 

6 documents indicating her time and when it was. 

7 Any information regarding how he specifically 

8 picked this lawyer, with his relationship with this 

9 lawyer is and what is the substance of any of their 

10 conversations prior to the 7th, on the 7th, regarding 

1 1 the plea, regarding their specifically not just the ; 

12 terms of the plea, but who made the decision regarding 

13 1A in the pica. Regarding an attestation by Mr. Wilds 

14 that he's always told the truth in all of his dealings 

15 with the police or with the prosecutor up and until 

16 that time and the substance of any conversation 

17 regarding how that lawyer got to be there on the 7th 

18 and what if any conversations took place that included 

19 Mr. Urick in the presence of Ms. Benaroya on the 7th 

20 that also included the presence of Mr. Wilds regarding 

21 the introduction of the lawyer. 

22 He's testified he had never met the lawyer before 

23 that day and what was said about the lawyer or | 

24 communicated about the lawyer in any manner. A 

25 telephone message, a telephone call tlirough one of the 

Page 44 

1 detectives through any other person or communication lo 

2 anyone else meant to get to Mr. Wilds about the lawyer 

3 that Mr. Wilds was about to meet on the 7th as to why 

4 she was chosen, what her experience was, what she now 

5 knew in tlirough what terms and we would request 

6 immediate disclosure of all of those circumstances 

7 Clearly believing we would have been entitled to have 

8 that disclosed, that it was a benefit and that we need 

9 thai disclosure now to effectively cross examine 

10 continually this witness about those terms because they 

1 1 clearly will relate to his credibility is dependant on 

12 that dependence of that lawyer, his dependance on Mr 

13 Urick and would also impact, for instance on our 

14 ability to effectively question Ms. Benarova 

15 THE COURT: The State does not wish to be 

16 heard, do you? 

17 MR. URICK: No. Thank you. 

18 TOE COURT: The motion is denied. The 

19 information that you are seeking to contain would be 

20 information that Mr. Wilds would have a prtvilcuc, llut 

21 is how he chose a lawyer, the circumstances under which 

22 he chose a lawyer. 1 do not believe the Slate has 

23 information of that magnitude that would warrant me 

24 asking the State to provide that information. In I act, 

25 the fact that the witness has already testified thai 



i 

4 

! 




■ .,. • , ( ~r <-> u , f i <\ . 



j ^JfiL^.. .7h.<L Qv.erb^ck' 



I rkr ...C^ ^S^ <*L-lir. __^t>Wk.K-.._.iry.pccL . 

(l 



Padj for. /-wa- .for nar )Ul j^o_k._ .. 



1 Q. Okay. And you recognize Ms. Lee's handwriting? 

2 A. Yes. 

3 Q. And on the reverse side, what -- describe what 

4 is on that page? 

5 A. It was a little note in between me and Adnan 

6 had drawn in class, I guess. And my handwriting's in 

7 pencil, his is in ink. 

8 Q. Okay. You recognize both your handwriting and 

9 Mr. Syed's handwriting? 

10 A. Uh-huh. 

11 MS. MURPHY: Your Honor, I would ask that 

12 State's Exhibit 38 be moved at this time? 

13 THE COURT: Any objection? 

14 MS. GUTIERREZ: I would object. 

15 THE COURT: All right. May I see the exhibit? 

16 (Pause.) 

17 THE COURT: For the record, I note your 

18 objection. 

19 I ask that you indicate a time frame, and, if 

20 you're able to do that through this witness, the exhibit 

21 will be admitted. 

•22 MS. MURPHY: Thank you, Your Honor. 

23 BY MS. MURPHY: 

24 Q. Ms. Pittman, based on your review of this 

25 exhibit, can you --do you have an idea of when this note 



243 



App 24 



1 was written? 

2 A. It was sometime early in November after the - - 

3 Adventure World trip. 

4 Q. Thank you. 

5 MS. MURPHY: Your Honor, I'd ask at this time 

6 the exhibit be admitted. 

7 MS. GUTIERREZ : Same objection, and renew the 

8 objection. Prejudicial. 

9 THE COURT: There's two parts of handwriting on 



10 it. There's one on the front, there's handwriting on the 

11 back. The witness has testified as to when she wrote cn 

12 the back, and are you saying you wrote on the back m 

13 November? 



14 THE WITNESS : Yes. 

15 THE COURT: Okay. Do you know when the front 

16 page of that was written? Of if there's anything in thac 

17 that would indicate to you the time frame, based on your 

18 knowledge of the relationship between the parties? 

19 THE WITNESS: This was also written in the 

20 beginning of November, sometime after the Adventure World 

21 trip. 

2 2 THE COURT: And how do you know that? 

23 THE WITNESS: Content of the letter. 

24 THE COURT: Very well. It'll be admitted over 

25 objection. 



244 



1 (State's Exhibit No. 38, 

2 having previously been 

3 marked for identifica- 

4 tiori/ was received in 

5 evidence . ) 

6 MS. MURPHY: Thank you, Your Honor. Your 

7 Honor, I would ask to publish this letter to the jurors 

8 by way of Ms. Pittman reading first the front side and 

9 then the back side? 

10 THE COURT: Any objection? I know you have an 

11 objection to the -- 

12 MS. GUTIERREZ: Only to the -- 

13 THE COURT: I understand that you have an 

14 objection -- 

15 MS. GUTIERREZ: document. 

16 THE COURT: --to the document. That's 

17 preserved. Do you have any objection to the process of 

18 her reading it as opposed to passing it along the jurors 

19 and having them read it? 

20 MS. GUTIERREZ: I do . I'd prefer the jurors 

21 read it. 

22 THE COURT: I'm gonna allow the witness to read 

23 the exhibit. 

24 One caveat: You may not read anything that is 

25 not visible to your eye. You may ncc decide what 



245 



A pp. 26 



1 . A. Yes, I did. 

2 Q. Okay. Thank you. 

3 MS. MURPHY: Your Honor, at this time I'd offer 

4 State's Exhibit 2. 

5 THE COURT: Any objections? 

6 MS. GUTIERREZ: No, Your Honor. 

7 THE COURT: All right. Let it be admitted. 

8 (State's Exhibit No. 2, 

9 having previously been 

10 marked for identifica- 

11 tion, was received in 

12 evidence . ) 

13 BY MS. MURPHY: 

14 Q. In fact, Mr. Lee, did there come a time when 

15 your sister found out that you read her diary? 

16 A. Yes. 

17 Q . She wasn't very happy about that, was she? 

18 A. No. 

19 Q. Mr. Lee, I'd ask you to look at a particular 

20 page that I've marked. Is this the page you've described 

21 to the jury? 

22 A. Yes, it is. 

23 Q. All right. And what does it depict? 

24 A. It has the phone number and the name Don 

25 written over the paper. 



32 



/» nn T7 



Condcnsclt! 



Page 304 

1 A Yes, I have. 

2 Q Can you identify that item? 

3 A It's Hae's diary. 

4 Q Had you -- when had you seen it? 

5 A I saw it the day that she bought it. 

6 Q Had you seen her carry it before? 

7 A TJh-hub, yes, 1 had. 

8 Q If I may, I'll ask you to read for the 

9 jurors the entry under May 14th, 1998? 

10 MS. GUTIERREZ: Objection. 

11 THE COURT: Overruled. 

12 A I think I'll try that one week recess Deb 

13 suggested. I hope forth and went out with Iesha, 

14 Deb, and Sean in Sean's new car. It is so fly with 

15 those tinted windows. We went to Baskins Robbins and 

16 I got some cappuccino blast. I couldn't be with my 

17 baby because he had to go to D.C. for his religious 

18 stuff. That's what I need to figure out. Do I dare 
(9 to pull him away from his religion? Ms. Savic was 

20 all up in my face about it. She said stuff like well 

21 Adnan used to be so religious and strict last year 
12 but this year he is so loose, like I changed him. 

23 Actually, I did and I don't want to pull him away 

24 from who he is. I think I need time to organize 

25 these things but I do not know that -- but I do know 

Page 305 

1 one thing. I love him and he loves me. Nothing will 

2 change that. I'll try the recess week and sec what 

3 happens. I'll probably kill myself if I lose him but 

4 I'll go crazy with things complicating. 1 wish he'll 

5 call back soon. 

6 MS. MURPHY: Thank you. 

7 Q Now, in the entry she mentions a one week 

8 recess? 

9 A Yes. 

10 Q Do you know what she was talking about? 
l L A Yes, 1 suggested to her -- 

12 Q Can you explain? 

13 A Sure. I suggested to her that she and 

14 Adnan take at least a week off from each other 

15 because their relationship was becoming very 

16 stressful. They were both coming to me with things 

17 about their relationship that were really bothering 

18 them and I suggested that they take some time off 

19 from each other to figure things out personally. 

20 Q I ask you now to read the entry under May 

21 15th? 

22 MS. GUTIERREZ: Again objection. 

23 THE COURT: Overruled. 

24 A I did it. Mc and Adnan arc officially on 

25 recess week or time out. I don't know what's going 



Page 306 

1 to happen to us, Although I'm in love with him, 1 f 

2 don't know about him. He actually suggests that what I 

3 we have is like, not love. I heard the doubt in his 

4 voice.* Although he couldn't pick up mine, I felt the I 

5 same way. I like him. No, I love him. It's just I 

6 all the things that stand in the middle, his religion 

7 and Muslim customs all are in the way. It irks me to 1 

8 know that 1 am against his religion. He called me a ' 

9 devil a few times. I knew he was only joking, but 

10 it's somewhat true. I hate that. It's like making 

11 him choose between me and his religion. 

12 The second thing is the possessiveness. 

13 Independence rather. I'm a very independent per.son. 

14 I rarely rely on my parents. Although 1 love htm 

15 it's not like I need him. I know I'll do just fine 

16 without him. I need time for myself and with my 

17 friends other than him. How dare he get mad at mc 

18 for planning to hang out with lesha. 

19 The third thing is the mind play. l'\c 

20 matured out of my jealousy shit. I don't get jealous 

21 over trying to get him jealous is a fool -- him 

22 trying to get mc jealous is a fool because I'll 

23 definitely loose him — me. I prefer a straight 

24 relationship that don't get in people mixed up i^i 

25 because he want to play mind games. 

307 

1 The fourth tiling is nothing. Because 1 do 

2 love him. It's just all of the shitty things that 

3 are messing with my mind. I'm just too confused. If 

4 I don't take the time to set tilings straight, the 

5 whole thing will blow up on my - blow up in :n> head 

6 making me mad and do something I'll regret forever 

7 That's why 1 need the time out. 1 just hope thai 1 

8 don't lose him because of this. I love him. When I 

9 hold him, I want it to be forever. I feel secure and 

10 comfy with him. I think he expected more of a 

U spontaneous combustion. That's not going to happen 

12 all of the time. Our relationship bums lightly ai 

13 first and then it eventually calms down. We started 

14 strong and now we settle in a boring but secure and 

15 loving relationship. I don't know what he wants. 

16 All I want is him to hold on to, to cuddle up to. 

17 kiss when 1 feel empty inside. Maybe I'm not 

18 supposed to be loved but supposed to love and 1 

19 thought I had found another keeper and maybe 1 ha\e 

20 Hopefully, we'll go through this and come out much 

21 stronger ~ with a much stronger foundation 1 io^c 

22 him. I can live without him but 1 love him and v. ant 

23 him with mc. Please Adnan be patient with me. lo\c 

24 Q Thank you. Now, slic had discussed w ith wu 
) 25 that recess week which six: talked about? 

Page 30- , no 
° Ann t.x 



1 to kill her," which he clearly didn't. 

2 But absent that, I would argue that what he 

3 says is not admissible, it's hearsay, it's not 

4 necessarily an admission. Anything that he said doesn't 

5 make -- Mr. Urick said hasn't made it out to be an 

6 admission. It's like, well, it sort of goes to motive, 

7 that sort of developed over four to six months, doesn't 

8 make it so. So, -- 

9 THE COURT: I'm gonna allow the State to 

10 inquire as to the relationship that this witness was 

11 aware of based on conversations that she had directly 

12 with the defendant or directly with the victim in a 

13 period of time preceding the murder. 

14 However, I'm gonna allow the defense to have 

15 free reign to inquire as to the limitations of that 

16 knowledge, any restrictions that that knowledge may have 

17 had, to including right up to the time of the murder. 

18 And I would also remind you that it is to be 

19 her personal knowledge and not based on information she 

20 had received from other sources. So when her sentence 

21 starts off with some other person other than the 

22 defendant, the victim said such and such, or we all knew, 

23 that will be not permitted. 

24 MR. URICK: I'm sorry. Did you say she can't 

25 say anything the victim told her? 



136 



-\pp 29 



1 THE COURT: She can tell you -- she can say 

2 what the victim said, she can say what the defendant said 

3 as to their relationship. But beyond that -- 

4 MS. GUTIERREZ: At any time period prior to her 

5 disappearance? 

6 THE COURT: The period of time on or about, as 



7 you've indicated, October, November, December in 1998. 

8 However, ' I will not allow anything other than what 

9 conversations she had with the witness, victim or the 

10 defendant. Other than that, not a we knew, what we all 

11 knew, what we all heard. That will not be permitted. 

12 And again, I will allow the defense on cross to inquire 

13 to the extent that that information will have 

14 limitations. 



15 MR. URICK-. Thank you. 

16 MS. GUTIERREZ: We would note an objection. 

17 THE COURT: All right. 

18 (Counsel and the defendant returned to the 

19 trial tables, and the following ensued.) 

20 THE COURT: Now, you may reask your last 

21 question or your next question in line with the Court's 

22 ruling. 

23 MR. URICK: Thank you. 

24 BY MR. URICK: 

25 Q. Drawing your attention to the Fall of 1998, 



13 7 



App. 30